1
The Potential for a Family Law Tribunal
INTRODUCTION
It is the first day of trial. I’ve worked with the father for almost a year. He has told
his story, and I’ve re-told it on his behalf, in four formal offers of settlement,
written briefs for three court conferences, mediation submissions, and, finally, in
the materials now before the court. His struggle for meaningful role in his three-
year old son’s life has been packaged by me in multiple ways.
The parties were never married; the mother is testifying, and the father finds this
unpleasant and at times infuriating. During a break he is assured by his counsel
(for whom I am an associate) that the mother’s account will be challenged on
cross-examination, and he will have a turn to tell his side of the story.
Cross-examination of the mother begins with all the drama for which the father
could have hoped. It is archetypal – she is quickly unnerved, becomes hesitant,
and slowly unravels. The father’s hopes palpably rise; the exposure of the
mothers’ irrationality will surely lead the judge to sympathize with his claim.
The judge eventually interrupts counsel’s cross-examination to say she doesn’t
approve of its tone – it is inappropriately aggressive. Counsel immediately backs
off, now showing excessive politeness to the witness. As soon as the mother leaves
the witness stand, the judge says she would like to speak to the parties. From the
bench, she delivers a rebuke to them for asking a stranger to make decisions about
their child. She tells them how much better it would have been for the child if they
had settled. She asks them if they both hope to attend the little boy’s wedding; they
do. The judge warns that if they proceed along the path they are on it is unlikely
they will both be invited. She repeats several times that she is not as qualified as
the parents to understand what is best for this child. She suggests the trial be
interrupted for a settlement conference or further mediation. She ends the day by
expressing hope that we can all be on a settlement track by morning.
We retreat with the father to one of the rooms in the courthouse designed for
private consultation, whereupon he erupts over the preceding negotiations,
conferences and mediation, all of which involved professional fees, and all of
which were met with stonewalling. He is incensed that the judge has insisted
upon a return to negotiation and has “weighed in” after hearing the “other
side” for an entire day and not having heard “his side.” He accuses his counsel
of alienating the judge with her cross-examination.
2
In the trial described above, the judge’s admonition finally undid the mother’s intransigence; the
parties settled the next day, on terms more favourable to the father than any of the four
settlement offers that had earlier been rejected. Privately, in chambers, the judge confided to
counsel that she “did not like” the settlement but had signed off because “at least it’s
consensual.” Despite this apparent “win,” the father was unnerved. The outcome was the result
of a court process in which he had not been heard, and it seemed random, with no apparent
connection to what “justice” or the law required.
This thesis builds upon a frequently noted paradigm shift occurring in Anglo-American legal
systems, particularly in the area of family law,
1
away from adversarialism and toward a more
collaborative, inter-disciplinary and problem-solving paradigm (Hybrid? Post-Adversarial?
Therapeutic? Vulnerability?) not yet fully formed.
1
See: Jana B. Singer, “Dispute Resolution and the Post-Divorce Family: Implications of a Paradigm Shift”
(2009) 47 (3) Fam. Ct. Rev. 363; Final Report of the Family Justice Working Group of the Action Committee
on Access to Justice in Civil and Family Matters, “Meaningful Change for Family Justice: Beyond Wise
Words” infra, footnote 23.
Unlike the judge, I am aware that the mother has refused to settle on any terms
which would allow him more than minimal access to the child, and her own
lawyer has characterized her, privately, as irrationally stubborn. I am aware that
his legal fees and trial retainer have necessitated a substantial second mortgage.
I am aware that he has literally and figuratively exhausted all avenues for
settlement, has come to court as a last resort and has been chastised for doing so,
at least in part because the decision-maker disapproves of the decision-making
process with which she has been entrusted.
3
Social and legal developments which appear to have contributed to, or seem symptomatic of, this
paradigm shift include: the large population of self-represented litigants in all dispute-resolution
forums,
2
the very low percentage of cases which proceed to trial in all areas of the law,
3
growth
in the number of problem-solving family courts in the United States,
4
and efforts to expand their
therapeutic orientation to other areas of the law;
5
the establishment of Family Relationship
Centres and the Less Adversarial Trial system in Australia,
6
and proposals released in October
2018 by the Australian Law Reform Commission aimed at “redevelopment” of the Australian
family justice system;
7
the current, ongoing “radical reorganization” of family courts in the UK;
8
the implementation of family law reform initiatives in Ontario, such as the Mandatory
Information Program,
9
Family Law Information Centres,
10
and court-adjunct mediation;
11
the
pending expansion of Unified Family Courts,
12
substantive law and process reforms contained in
British Columbia’s Family Law Act
13
and similar reforms contained in proposed amendments to
2
Julie Macfarlane, “The National Self Represented Litigants Project: Identifying and Meeting the Needs of
Self Represented Litigants, Final Report” infra, footnote 128. See also: Rachel Birnbaum and Nicholas Bala,
“Experiences of Ontario Family Litigants with Self-Representation” infra, footnote 122.
3
Law Commission of Ontario, “Towards a More Efficient and Responsive Family Law System: Interim
Report” online: http://www.lco-cdo.org/en/family-law-reform-interim-report
4
Barbara A. Babb, “Re-evaluating Where We Stand: A Comprehensive Survey of American Family Justice
System,” (2008) 46 (2) Fam. Ct. Rev. 230.
5
Judith S. Kaye, Delivering Justice Today: A Problem-Solving Approach, 22 Yale L. & Pol'y Rev. 125 (2004).
6
Jennifer E. McIntosh, Hon. Diana Bryant and Kristen Murray, “Evidence of a Different Nature: The Child
Responsive and Less Adversarial Initiatives of the Family Court of Australia” (2008) 46 (1) Fam. Ct. Rev. 125
at page 126.
7
Australian Law Reform Commission, “Review of the Family Law System: Discussion Paper” online:
https://www.alrc.gov.au/publications/review-family-law-system-discussion-paper
8
Lisa Parkinson, “The Place of Mediation in the Family Justice System” (2013) 25 Child & Fam. L.Q. 200 at
page 200.
9
Nicholas Bala, “Reforming Family Dispute Resolution in Ontario: Systemic Changes and Cultural Shifts” in
Middle Income Access to Justice, Michael J. Trebilcock, Lorne M. Sossin and Anthony J. Duggan (eds.)
(University of Toronto Press, 2012) at page 281-282.
10
Ontario Ministry of the Attorney General, Family Law Information Centres, online:
https://www.attorneygeneral.jus.gov.on.ca/english/family/infoctr.php
11
Supra, footnote 9 at page 289. [Bala, “Reforming Family Dispute Resolution]
12
Philip Epstein, Epstein’s This Week in Family Law Fam. L. Nws. 2018-13.
13
Family Law Act, SBC, 2011, c 25.
4
the Divorce Act;
14
academic literature and popular media accounts which have drawn attention
to problematic aspects of family court systems,
15
and further literature which has pointed out the
potential for tribunal processes in “areas of vulnerability” in family law;
16
the inclusion of
“multi-disciplinary approaches” and “legal problem-solving” in law school curricula; the
emergence of “vulnerability theory” as a way of interpreting the institutional effects of law and
legal systems;
17
and, finally, the December 2017 proposal of the Australian Parliament to test a
Parenting Management Hearing Panel, a multi-disciplinary administrative tribunal for “less
complex” children’s matters in which parties are self-represented.
18
The central argument of this thesis is that the noted paradigm shift may facilitate experimentation
with alternative institutional approaches to family law dispute resolution. This thesis explores the
potential for a tribunal-based family justice system, at minimum for cases involving children’s
best interests. I argue that the longstanding recognition that family litigation is damaging to
children and separated families has become incompatible with social norms to the extent that it
may legitimately be considered a new and serious social problem that requires an innovative
solution. I argue that a novel jurisdiction in family law may be created by a holistic tribunal
“settlement system” in which multi-disciplinary mediators and adjudicators function as equals,
tribunal expertise is nurtured, and transparent decision-making guidelines are developed.
Adjudication in a settlement system could be relegated to a secondary, accessible, and
inquisitorial component.
14
Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.).
15
See: infra, footnote 23. [Family Justice Working Group Report]
16
Kent Roach and Lorne Sossin, “Access to Justice and Beyond” (2010), 60 Univ. of Toronto L.J. 373.
17
Martha Albertson Fineman, “The Vulnerable Subject, Anchoring Equality in the Human Condition” (2008-
2009), 20 Yale J.L. & Feminism 1.
18
Supra, footnote 7 at pages 142-143. [Australian Law Reform Commission, Discussion Paper]
5
Vulnerability theory is a rapidly growing theoretical approach to law, which I apply to family
court systems; by way of introduction, vulnerability theory calls for a “responsive state” to place
the needs of the “vulnerable subject” at the centre of social policy.
19
It emphasizes substantive
rather than formal equality, examines the effects of social institutions on the populations they
serve,
20
and unmasks illusions about autonomy and choice.
21
The empirical research conducted for this project explores decision-making in four selected
Ontario tribunals, which I argue have points of similarity to family law adjudication. Research
methods include participant observation, ethnography, and interviews with tribunal members.
Through the empirical research and administrative law literature review, many aspects of
tribunal culture are explored, including the administrative law principles upon which the subject
tribunals are based, the processes they are permitted to employ, how they are actually employed,
and views among the members interviewed as to the effects of tribunal processes upon
vulnerable populations.
There is an acknowledged imbalance between the scope of this project and the topic with which
it engages. I ask the reader to consider this thesis a “thought experiment” in which the potential
for a family law tribunal is imagined in the context of the reported functioning of family court
systems, select administrative law tribunals, and administrative law principles. Expert input from
multiple disciplines (family and administrative law, constitutional and criminal law; social work
19
Supra, footnote 17. [Fineman, Anchoring Equality]
20
Ibid. [Fineman, Anchoring Equality]
21
Ibid. [Fineman, Anchoring Equality]
6
and psychology) would be required, as well as extensive additional research, to move beyond the
thought experiment stage.
I have not explored untapped potential of family court systems, for a number of reasons. First, a
full comparative institutional analysis is beyond the scope of this paper. Second, there are many
precedents for implementing a new policy agenda through an administrative tribunal process
including instances in which tribunal jurisdiction was previously exercised by the Superior
Courts (such as the Worker’s Compensation Board, Worker’s Compensation Appeal Tribunal,
Ontario Labour Relations Board, and Financial Services Commission, now re-constituted as part
of the Licensing Appeal Board) suggesting that in the context of a new policy agenda, transition
to a tribunal can be a natural progression. Finally, a pattern of reform has been identified with
respect to the Ontario family law court system that consists of attaching “new reforms and
offices to the system, without considering the complexity of the entire structure,”
22
which has
been portrayed as less than ideal.
23
To the extent that it may, one day, be timely to rebuild the
family justice system “from the ground up,”
24
there is, in my view, every reason to consider
alternative institutional approaches.
22
Noel Semple and Carol Rogerson, “Middle Income Access to Justice: Policy Options with Respect to
Family Law,” in Middle Income Access to Justice, Michael J. Trebilcock, Lorne M. Sossin and Anthony J.
Duggan (eds.) (University of Toronto Press, 2012) at page 448.
23
Final Report of the Family Justice Working Group of the Action Committee on Access to Justice in Civil
and Family Matters, “Meaningful Change for Family Justice: Beyond Wise Words” (April 2013), at page 1;
online: http://www.cfcj-
fcjc.org/sites/default/files/docs/Report%20of%20the%20Family%20Law%20WG%20Meaningful%20Change
%20April%202013.pdf
24
Supra, footnote 22 at page 421. [Semple and Rogerson] The authors refer to the prospect of re-building the
court system from the “ground up.”
7
In Chapter One, institutional analysis is discussed, the application of vulnerability to family
dispute resolution is introduced, and social changes that suggest new norms, and may be
propelling the paradigm shift referred to above, are briefly noted.
Chapter Two reviews the operation of existing family dispute resolution systems, as disclosed in
academic literature and prior research, with an emphasis upon self-represented litigants, the
value of structured decision-making in family law, the importance of truth-finding in the
application of the best-interests-of-the-child test, and the effect upon self-represented litigants of
formal court processes. Under the heading “But We Do That Already” I discuss a potential
objection to this thesis – that family law court systems have been so thoroughly and effectively
reformed as to render this paper moot. Much of the research and literature cited is critical of
family court systems; I note that it is taken from credible sources and its aggregation is not
gratuitous. The intention is to illustrate the importance of overcoming the “implementation gap”
referred to in the Family Justice Working Group Report,
25
and to identify areas in which
alternative institutional approaches appear to warrant further research and consideration. It is not
meant to convey a lack of respect for the Ontario family law bench and bar, or to imply that no
aspects of existing court systems should inform the exploration of different institutional
approaches. As Nigel Stobbs writes, a paradigm shift “is about the evolution of disciplines, not
progress by the total rejection of the cumulative disciplinary matrix.”
26
Chapter Three is comprised of a vulnerability theory analysis.
25
Supra, footnote 23. [Family Justice Working Group Report]
26
Nigel Stobbs, “Nature of Juristic Paradigms: Exploring the Theoretical and Conceptual Relationship
Between Adversarialism and Therapeutic Jurisprudence” (2011-2012), 4 Wash. U. Jurisprudence Rev. 97 at
page 100.
8
In Chapter Four, academic literature and prior research as to the features of administrative law
and tribunal adjudication are discussed. The essential components of adversarial and inquisitorial
models are identified, and I suggest that in custody and access cases which require adjudication,
decision-making should be more inquisitorial and less adversarial.
Chapter Five sets out the methodology used in the empirical research component of this project
and summarizes briefly the characteristics of the four tribunals in which hearings were observed
and interviews conducted. Tribunal members who participated in interviews were asked to
recount their experiences and perceptions with respect to tribunal adjudication and settlement
processes. The empirical data is reported upon in narrative form in Chapter Six and attached in
chart form as Appendix B.
Chapter Seven identifies the assumed policy goals of a hypothetical family law tribunal and
discusses the capacity of tribunal processes to achieve them. Relevant reports and commentary
with respect to family court systems are briefly considered as well, with the caveat that a full
comparative institutional analysis is beyond the scope of this project. The chapter concludes by
identifying areas in which further study is recommended.
In Chapter Eight the potential for therapeutic justice and efficiency in tribunal systems is
discussed, as is the potency of adversarial ideology and symbolism, and the strength of
entrenched interests. Arguments relevant to the constitutional validity of a family law tribunal
are proposed, and other potential obstacles are briefly discussed. It is argued that symbolic and
9
ideological obstacles to tribunal adjudication in family law and are increasingly becoming
eclipsed by the paradigm shift noted at the outset of this thesis.
10
1. FRAMEWORK, THEORY AND SOCIAL POLICY
Adjudication is a form of social ordering.
27
This chapter discusses institutional analysis, and reviews theoretical perspectives and social
movements which, I argue, are relevant to the paradigm shift referred to above.
1.1 Institutional Analysis
The words “court” and “tribunal” are sometimes used interchangeably, and in a casual sense they
both refer to adjudicative bodies. Not so here; I use “court” to refer to a traditional legal
decision-making forum built upon adversarial principles, with broad plenary or statutory
authority to apply the law, and in which certain formalities are routinely observed: judges and
court staff are robed (as are lawyers in the Superior Court), lawyers bow to judges, processes are
governed by complex and detailed rules,
28
and surroundings are at least somewhat stately and
distinctly hierarchical. The word “tribunal” is used here to connote an entity that is legislatively
created under administrative law principles, with a limited and specific mandate and a narrow
statutory power of decision granted for the purpose of implementing an articulated policy
agenda, and often (but not always) designed to be relatively informal and “user-friendly,” with
the expectation of serving large numbers of self-represented parties.
29
While the Ontario
Provincial Courts were created by the Courts of Justice Act,
30
(unlike the Superior Courts of
Justice, which have plenary authority) and, like tribunals, these courts have the power to
27
Justice Thomas A. Cromwell, “Neither out Far nor in Deep: The Zuber Commission and the Problems of
Civil Justice Reform” 37 U.N.B.L.J. 94 (1988).
28
In Ontario: Rules of Civil Procedure, R.R.O. 1990, Reg. 194 under Courts of Justice Act, R.S.O. 1990, c.
43.; and in family law: Family Law Rules, Courts of Justice Act, R.S.O. 1990, c. C.43, O. Reg.114/99.
29
Raj Anand, “A Checklist for Administrative Law Today” 27 Can. J. Admin. L. & Prac. 235 at page 235.
30
Courts of Justice Act, R.S.O. 1990, c. 43.
11
establish and adapt their processes through practice directions and specialized rules of procedure,
and like tribunals, they deal with large numbers of self-represented parties and have adapted to
better assist them, tribunals exist as part of a distinct legal culture. A false equivalency between
courts and tribunals, as the terms are used here, trivializes administrative law principles, norms
and structures.
This thesis examines the potential for administrative processes to ameliorate some problems in
some aspects of family litigation; it is not a fulsome comparative institutional analysis, which
would typically involve a blend of law and economics and critical legal studies,
31
and would
require a multifaceted examination of the economic and social effects of both court and tribunal
processes,
32
including new empirical research on family courts and far more extensive empirical
research on tribunal functioning than is provided here. Most important, it would canvass the
experiences of tribunal users and fully investigate the potential benefits of newly proposed
reforms to family court systems, particularly the recently approved and much celebrated
expansion of Unified Family Courts in Ontario. Indeed, it seems safe to assume that positive and
successful developments in family law practice and dispute resolution exist that have not been
discussed in literature reviewed for this project. Within the narrow scope of this project, I believe
it is reasonable to focus upon problems in family law court systems which appear to remain
unsolved, given that credible (in some instances, authoritative) family law research and
commentary has been used to identify them, with the caveat that very recent reforms may have
mitigated these problems in ways that have not yet generated study and commentary.
31
Edward L. Rubin, “The New Legal Process, The Synthesis of Discourse and Microanalysis of Institutions”
(1995-1996), 109 Harv. L. Rev. 1393 at page 1403.
32
Ibid., at page 1428. [Rubin]
12
Despite that a wholesale institutional analysis has not been undertaken, the questions raised in
such an analysis: How does law operate in the world? What are the “human ends served by
justice systems?”
33
How do different institutions attempt to achieve similar policy goals?
34
provide a framework for discussion. The question of how law operates in the world here
concerns adjudication in family law court systems and select tribunals. As noted, problems are
identified through prior research and literature, and tribunal processes that may help to address
these problems are identified similarly, with the addition of the empirical research conducted for
this project. The “human ends” of justice systems considered in this project are those that prior
research suggests are significant and, to varying degrees, unmet in existing family law dispute
resolution systems. They include access to justice in all of its forms, and in particular, access to
authoritative dispute resolution that does not disadvantage self-represented litigants and is not
damaging to families and children. The question of how different institutions attempt to achieve
similar policy goals is addressed through a discussion of the potential for tribunal processes to
address needs that remain unmet in family court systems. This analysis does not pretend to be
exhaustive, and it is obviously not conclusive of either the potential for tribunal processes in
family law or the potential for further reformed court processes. It is an initial foray into complex
question.
33
Hanoch Dagan, “The Realist Conception of Law” (2007), 57 U. Toronto L.J. 607.
34
Gregory Shaffer, “Comparative Institutional Analysis and a New Legal Realism” (2013), Wis. L. Rev. 607
at page 609.
13
The idea of a family law tribunal is not original to this thesis. A tribunal or “tribunal-like”
approach to family law has previously been suggested by academics and judges. Kent Roach and
Lorne Sossin have suggested:
[t]he increased resources that would be required to add the middle class to legal aid might
better be directed at more fundamental reallocation of resources, including the
replacement of a costly court-based system in areas such as family law with a holistic
tribunal structure.”
35
Alberta Justice Hugh Landerkin has recommended a staged approach to custody and access
disputes, described as “closer to an administrative tribunal.”
36
An analysis of the potential for
administrative systems in family law is contained in the 1999 prize-winning paper of then-
undergraduate law student Kathy Carmichael; she envisions a comprehensive, non-adversarial
administrative system to process divorce applications and provide a wide range of related
services.
37
Very recently, the government of Australia announced a four-year pilot project to test
an administrative tribunal “designed to provide a multi-disciplinary alternative to court
proceedings for less complex children’s matters where parents are not legally represented.”
38
Decision-making panels comprised of family lawyers, social workers, child development experts
and psychologists will conduct Parenting Management Hearings (PMHs) designed to assist self-
represented parents to resolve child-related disputes. The plan is to give PMHs “powers to make
35
Supra, footnote 16 at page 375. [Roach and Sossin] The authors also recommend clear law and note that
access to justice must be situated in the context of social and economic redistribution.
36
The Honourable Hugh F. Landerkin, “Custody Disputes in the Provincial Court of Alberta: A New Judicial
Dispute Resolution Model” (1996-1997), 35 Alta. L. Rev. 627.
37
Kathy Carmichael, “New Directions: Divorce and Administrative Law, Department of Justice” (1999),
online: http://www.cfcj-fcjc.org/sites/default/files/docs/hosted/17456-new_directions.pdf
Carmichael wrote this paper, for which she won a Department of Justice “Dispute Resolution in Law Studies”
award, as a University of New Brunswick law student. The paper is still posted on the Department of Justice
website (http://www.justice.gc.ca/eng/pi/dprs-sprd/prog/award-prix/awardr-prixr.html), and a synopsis with a
link to the full text also appears on the Canadian Forum for Civil Justice website, under the heading “Context-
specific Dispute Resolution” (http://www.cfcj-fcjc.org/clearinghouse/context-specific-alternative-dispute-
resolution).
38
See: supra, footnote 7 at pages 142-143. [Australian Law Reform Commission, Discussion Paper]
14
binding determinations on simple family law matters, which would otherwise require
consideration by family law courts, and its processes are intended to be fast, informal, non-
adversarial and more inquisitorial.
39
There are, of course, obstacles to a tribunal approach to family law dispute resolution, some of
which have constitutional underpinnings and therefore vary among different jurisdictions; further
obstacles have been suggested in the form of a need for strong legal powers to deal with
domestic violence cases and issue contempt of court orders, and a need for advanced legal
reasoning in complex cases.
40
Obstacles to tribunal jurisdiction are, of course, fundamental
concerns that would be resolved by expert analysis in the context of a larger project. Within the
limited remit of this paper, potential arguments with respect to the constitutional validity of a
family law tribunal and the availability of strong tribunal powers are briefly discussed.
It is not difficult to explain the policy motivation to create deeply reformed family law dispute
resolution processes. There is now a preference for settlement in all areas of the law, and existing
research on the experiences of litigants, lawyers and judges in Canadian family court systems,
reveals persistent criticism, despite decades of reform, which extends beyond custody disputes
and implicates all areas of family law. Much of this criticism, set out in some detail below, has
emanated from the judiciary, including commentary from Justices of the Supreme Court of
39
Parliament of Australia, Parenting Management Hearings, online:
https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/Budget
Review201718/ParentingHearings
40
Noel Semple and Nicholas Bala, “Reforming the Family Justice System” (2013) Paper prepared under
contract with the Association of Family and Conciliation Courts online: http://afccontario.ca/wp-
content/uploads/2015/11/Semple-Bala-Family-Justice-Reform.pdf
15
Canada, the British Columbia Court of Appeal, the Ontario Superior Court of Justice and the
Ontario Provincial Court, and from highly esteemed Canadian academics.
It has been asserted in the literature that despite societal and institutional preference for
settlement of family law disputes, some cases “cannot or should not settle,”
41
and it has become,
in my view, increasingly trite to say that adversarial processes are inappropriate for cases
involving children.
42
Accepting both of these propositions, there is an obvious need for
accessible, authoritative adjudication that is not based upon adversarial processes for cases that
cannot or should not settle. This is not a novel insight; indeed, the 2018 Australian Law Reform
Commission Review of the Family Law System Discussion Paper,
43
notes that a key concern
which emerged in responses to its prior Issues Paper
44
is that developments in alternative dispute
resolution do not help families who need an adjudication process; it states that they “continue to
face a process that is ill-suited for dealing with family relationship issues” and cites very
familiar-sounding reports as to the damaging effects of family litigation.
45
It is noted in comparative institutional analysis scholarship that institutions create patterns of
perceiving matters which independently affect outcomes.
46
This is one of any number of
41
Ibid., at page 9. [Semple and Bala, Reforming the Family Justice System] The authors note that apart from
the characteristics of the parties and the nature of the dispute, reproducing public values, creating precedent
through the imposition of outcomes consistent with legal entitlements, clarifying important or novel points of
law, resolving constitutional challenges, and facilitating settlement through the shadow of the law are further
reasons that some cases should not settle.
42
See: supra, footnote 7. [Australian Law Reform Commission, Discussion Paper] See also: J.A. Jolowicz,
“Adversarial and Inquisitorial Models of Civil Procedure” (2003), 52 Int'l & Comp. L.Q. 281 at page 281.
43
Ibid. [Australian Law Reform Commission, Discussion Paper]
44
Infra, footnote 309. [Australian Law Reform Commission, Issues Paper]
45
Ibid., at page 138. [Australian Law Reform Commission, Discussion Paper] The Report notes stakeholders
reports “that the litigation process tends to entrench or exacerbate existing hostilities between the parties, with
adverse implications for the wellbeing of children.”
46
Supra, footnote 34 at page 617-617. [Shaffer]
16
“process effects” which may result in an institution producing outcomes which not only fail to
reflect legal entitlements, but also undermine the policy rationale of the institution itself. I argue
here that the negative process effects of family court systems described by judges and academics
beg the question: what is the policy rationale for the resolution of family law disputes through a
court system in an era that vastly prefers settlement? The policy rationale for a tribunal, on the
other hand, is often easy to identify; it is inherent in its specific mandate. Its processes are
designed at the legislation stage or by the tribunal itself to best serve its mandate, suggesting a
coherence between policy and function. Moreover, tribunals may be created to “adjust
interests,”
47
that is, not only make decisions about existing rights, but empower a weaker party or
population through conscious process design choices, as part of a mandate to achieve policy
goals.
It has been said that it is difficult to treat tribunals as a coherent sector of administrative justice,
given their broad range of mandates and statutory powers,
48
and that the scope and complexity of
administrative law creates significant methodological challenges for comparative tribunal
study.
49
To at least partially address this concern, I have chosen to study four tribunals with
different features and mandates, but sufficient similarities to suggest some harmonized values
and to have been “clustered” under an umbrella organization known as “Social Justice Tribunals
of Ontario:” the Child and Family Services Review Board, Landlord and Tenant Board, Social
Benefits Tribunal, and the Human Rights Tribunal of Ontario.
47
H. W. Arthurs, “Three Faces of Justice - Bias in the Tripartite Tribunal” (1963) 28 Sask. Bar Rev. 4 at page
147.
48
Lorne Sossin, “Independence, Accountability and Human Rights” online,
http://www.justice.gov.yk.ca/pdf/Lorne_Sossin_Article.pdf at page 4.
49
Janina Boughey, “Administrative Law: The Next Frontier for Comparative Law” (2013), 62 (1) I.C.L.Q. 55
at page 65.
17
Some of my experiences of the family court system are set out anecdotally, at the outset of this
paper and in the chapter “Courts and Family Law.” Anecdotal recollections are based upon
memory, and are not offered as “research,” but rather, as illustrations, in part, of experiences that
motivated my interest this project.
50
Throughout the balance of this paper a few of my
observations of tribunal hearings are reported ethnographically. These ethnographic accounts are
based upon detailed and thorough contemporaneous notes and are included as research. Both
ethnographic research and anecdotal recollections are included as singular examples of observed
or experienced events and are not meant to betray the complexity of any institution or role, that
is, they are not intended to be generalized to the whole.
1.2 Theoretical Supports
Law can no longer maintain itself as an autonomous discipline.
51
This paper is not intended to contribute to the larger discussion of the nature of law and does not
argue for the merits of one theory over another, which is beyond its scope; instead, it suggests
that certain legal theories provides a framework for interpreting the effects of existing legal
processes
52
and help to create a bridge between “what is” and “what ought to be.”
One such theoretical framework is legal realism,
53
which began as a challenge to the formalist
assumption that law is determinate, outside the social climate, different from, and superior to,
50
My experience in family law practice consists of three years as an associate in a litigation firm, from 2007 to
2010; I previously worked as a corporate and commercial lawyer.
51
Supra, footnote 31 at page 1394. [Rubin]
52
Margaret Davies, “Legal Theory and Law Reform” (2003) 28 Alternative L. J. Vol. 4 at page 168.
53
Supra, footnote 33. [Dagan]
18
politics.
54
New legal realism emphasizes the importance of empirical research and moves beyond
the analysis of appellate opinions to the analysis of decision-making processes and the potential
distortion of these processes by systemic forces which, in family law, might include settlement
pressure, coercive mediation, and bargaining outside the shadow of the law.
55
A branch of new
legal realism, critical legal studies, is focused on the big picture: it locates the indeterminacy of
law beyond the interpretations of individual judges, in the larger sphere of fragmented political
cultures in which law can serve a rationalizing function for culturally embedded privileges and
disadvantages; in effect, to maintain existing power structures with scant consideration for social
justice.
56
A further branch of new legal realism known as new governance theory advocates for a
problem-solving, collaborative approach to both the creation and implementation of law.
57
Legal realism emphasizes the tensions inherent in law and “hints at” institutional features that
can alleviate these tensions.
58
Vulnerability Theory, another new branch of new legal realism,
59
goes a giant step further; it interrogates the extent to which social institutions (such as legal
systems) perpetuate patterns of privilege and disadvantage among the populations they are meant
to serve, and emphasizes state responsibility to justify or remedy institutional effects that fail to
further a substantive equality agenda.
60
Vulnerability theory calls for a “responsive state,”
61
and,
in my view, strongly resonates with family law reform literature which recommends “a more
54
Brian Z. Tamanaha, “Understanding Legal Realism” (2008-2009), 87 Tex. L. Rev. 731 at page 731.
55
Stewart Macaulay, “Contracts, New Legal Realism and Improving the Navigation of the Yellow Submarine”
(2005-2006), 80 Tul. L. Rev. 1161.
56
Supra, footnote 31 at page 1427. [Rubin]
57
Victoria Nourse and Gregory Shaffer, “Varieties of New Legal Realism: Can a New World Order Prompt a
New Legal Theory” (2009) 95 Cornell L. Rev. 61 at page 88.
58
Supra, footnote 33 at page 613. [Dagan]
59
Supra, footnote 57 at page 76. [Nourse and Shaffer]
60
Martha Albertson Fineman, “The Vulnerable Subject and the Responsive State” 60 Emory L.J. 254.
61
Ibid. [Fineman, Responsive State]
19
dramatic shift to non-adversarial approaches,” through “drastic change,” “fundamental overhaul”
and a “paradigm shift”
62
in family law dispute resolution.
It is admittedly a sharp turn from vulnerability theory to law and economics, which focusses
upon the individual choices of autonomous and presumably empowered (that is, not vulnerable)
rational economic actors. This turn is made here for two reasons: 1) it has been noted in law and
economics literature that the ability of tribunal systems to target specific policy objectives may
make a tribunal model “better suited to specific areas of vulnerability,” including “at least some
areas of family law;”
63
and 2) despite that law and economics is unconcerned with power
imbalances, which it takes as a given, and it is skeptical of the ability of governments to increase
“net social welfare,”
64
a behavioural law and economics analysis is an alternative to vulnerability
theory for examining who benefits and who loses (that is, patterns of advantage and
disadvantage) through the operation of law and legal systems. Such an analysis is well beyond
the scope of this paper but is recommended as a subject of further study.
1.3 Social and Legal Movement
We experience ourselves, our thoughts and feelings as something separate from the rest.
A kind of optical delusion of consciousness.
65
An analysis of the capacity of dispute resolution processes to serve human ends by meeting a set
of goals must, naturally, identify these goals. Certain goals, such as efficiency, are
uncontroversial but may be variously interpreted; is the standard “bare efficiency” (the number
62
Supra, footnote 23. [Family Justice Working Group Report]
63
Supra, footnote 16 at page 15. (Westlaw) [Roach and Sossin]
64
Michael J. Trebilcock, “Law and Economics” (1993), 16 Dalhousie L.J. 360 at page 376.
65
Mathew Ricard, The Quantum and the Lotus (Random House Inc., 2001).
20
of cases processed and how long it takes to process them) or something more nuanced that
accounts for user experience and fairness? Absent targeted social science research, it is risking
hubris to claim an understanding of social consensus sufficient to justify a new social policy
agenda. Having acknowledged that, the following is ventured.
Much evidence suggests that the self-represented litigant phenomenon is now a durable socio-
legal fact, and, moreover, the population of self-represented litigants is becoming large and
diverse enough to suggest, in areas such as family law, that the self-represented are no longer
marginalized as against the mainstream, they have become the mainstream. Ample empirical
research, including my own, supports the now-mainstream status of self-represented litigants,
which, in turn, suggests several things: first, this “group” occupies a significant place in justice
systems, and their perceptions of the way they are treated translates into confidence (or the lack
of it) in these systems.
66
Second, designing justice systems to serve the interests of self-
represented litigants is not a matter of tailoring justice to the quirks of individuals or outliers; nor
is it a “nanny state” solution for the underprivileged. Third, the increasing diversity of self-
represented litigants (more to the point: low income is no longer the defining feature of self-
represented litigants) makes it difficult to dismiss vulnerability theory’s proposition that the
population of self-represented litigants could include almost any one, at almost any time, and
social policy goals should address this common risk.
66
Ronald Staudt and Paula L Hannaford, “Access to Justice for the Self Represented Litigant: An
Interdisciplinary Investigation by Designers and Lawyers” (2002), 52 Syracuse L. Rev. 1017.
21
Efforts to improve access to justice often contain a “substantive equality” argument and are
driven by “ethical demand.”
67
An example deeply relevant to this project is the reform of spousal
support law in Canada. In a period known as the “trilogy era,” broad-based dissatisfaction
developed with meagre, short-term spousal support awards premised upon the “formal equality”
of separated spouses. Support orders were based upon un-nuanced and often unrealistic
assumptions about the ability of ex-spouses who had been financially dependent in marriage,
usually women, to become financially independent after separation.
68
In Moge v. Moge
69
the
Supreme Court of Canada acknowledged academic writing on the “feminization of poverty” and
departed from the prior line of precdent.
70
Carol Rogerson and D.A. Rollie Thompson
subsequently created the Spousal Support Advisory Guidelines (“SSAG”) pursuant to which the
quantum and duration of spousal support are standardized within ranges, calculated by applying
factors such as years worked during marriage, children and their ages, length of marriage, and so
on. The effect was to incorporate individual circumstances into the analysis of a spouse’s ability
to become self-sufficient after separation. The threshold issue of entitlement to support was left
to be determined based upon individual circumstances. It is difficult to overstate the significance
of the SSAG, which have profoundly improved outcomes for separated women and their
children.
67
“Ethical demand” refers to demand for innovation in response to the misalignment of a system or law with
perceived norms or social values. See: Martha Fineman and Anna Grear, “Introduction, Vulnerability as
Heuristic – an Invitation to Future Exploration” in Vulnerability: Reflections on a New Ethical Foundation for
Law and Politics, Anna Grear, Martha Albertson Fineman (eds.) (Ashgate Publishing, Ltd., Jan. 28, 2014).
68
Carol Rogerson, “Spousal Support After Moge” (1996), 14 Can. Fam. L. Q. 281; and, Carol Rogerson, “The
Canadian Law of Spousal Support” (2004-2005), 38 Fam. L.Q. 69.
69
Moge v. Moge, [1992] 3 S.C.R. 813.
70
Ibid. [Moge]
22
Follow-up research indicates the SSAG, despite being advisory only, were quickly and widely
adopted by Canadian trial courts, and endorsed by appellate courts;
71
they have gained
tremendous status and legitimacy. The British Columbia Court of Appeal has gone so far as to
suggest the SSAG should invariably be applied in the absence of articulated reasons as to why
they should not. This presumptive approach has been endorsed by the Ontario Court of Appeal,
although it has been criticized in other provinces.
72
Whatever social forces might have resisted the SSAG, (lingering support for formal equality,
men’s rights groups preferring the status quo, individualized justice enthusiasts chafing at
standardization…) were seemingly overcome. The SSAG were propelled by the prior
development of a rule-based mindset with respect to financial outcomes in family law, the prior
struggles of courts to reconcile spousal support with prevailing notions of formal gender
equality,
73
and forceful arguments in the literature about the “feminization of poverty.”
74
In
retrospect, the SSAG seem to be an instance of ethical demand enabling the law to respond to the
“vulnerable subject.”
As suggested above, it has increasingly been recognized that adversarial processes, sometimes
associated with a “winning at all costs” ethic, are unsuitable for family law dispute resolution.
75
71
Carol Rogerson and D.A. Rollie Thompson, “Spousal Support Advisory Guidelines Three and a Half
(almost) Years Later: Cases, Criticisms and Responses, Revisions” Family Law Source (Westlaw). See also
Carol Rogerson and D.A. Rollie Thompson, “The Canadian Experiment with Spousal Support Guidelines”
infra, footnote 151.
72
Julien D. Payne, “Recent Developments in Family Law in the Common Law Provinces” (2011), 38 Advoc.
Q. 292 at pages 325-326.
73
Supra, footnote 68, at page 281. [Rogerson, After Moge]
74
See: Moge v. Moge, [1992] 3 S.C.R. 813.
75
See: supra, footnote 7. [Australian Law Reform Commission, Discussion Paper] See also: Michael King,
Arie Freiberg, Beckie Batagol, Ross Hyams, Non-Adversarial Justice (Federation Press, 2014).
23
Indeed, the stated goals of family court reform initiatives, which almost invariably emphasize the
importance of alternative consensual dispute resolution processes, illustrate that norms now
support non-acrimonious divorce. A celebrity couple’s press release announcing their “conscious
uncoupling” was derided as pretentious, but nonetheless conveyed an idea with social currency.
Vulnerability theory clearly emphasizes human connectedness and interdependence, as do
popular spiritual movements and academics in a variety of fields.
76
For example, in a
vulnerability theory analysis of climate change, “existential assets” were defined as systems of
belief that include religion and perhaps politics, which may foster “an ethic of human oneness
that can serve as a catalyst for an equitable global climate regime in which all communities can
be resilient.”
77
It is abstract, yet entertaining, to consider that neuroscience has discovered an
interdependence between the right and left hemispheres of the brain – they reportedly have more
overlapping functionality than was previously thought, and what is more, it has been
convincingly argued that a left brain orientation (described as a sort of disease, or at least
dysfunction) has become culturally dominant over the past century, resulting in a lamentable loss
of “betweenness” among people.
78
To venture deeper (literally), quantum mechanics has
demonstrated that simply measuring the spin of one particle can instantaneously change the spin
of another, far away, seemingly separate particle, which some consider an explanation for
telepathy (the ultimate connectedness), and which Einstein famously referred to as “spooky
action at a distance.”
79
76
See: Martha Minow, “Lawyering for Human Dignity” (2002-2003), 11 Am. U. J. Gender Soc. Pol'y & L.
143.
77
Atieno Mboya, “Vulnerability and the Climate Change Regime” (2008) 36 UCLA J. Envtl. L & Pol’y 79 at
page 93.
78
Iain McGilchrist, The Master and his Emissary, The Divided Brain and the Making of the Western World,
(Yale University Press, 2009) at pages 393-397.
79
Walter Isaacson, Einstein, His Life and Universe, (Simon & Shuster, 2007) at page 533.
24
I argue that cultural approbation of a more “enlightened” approach to divorce, the mainstream
status of self-represented litigants, a legal realist, evidence-based approach to law and social
policy, and the emergence of vulnerability theory as a way of understanding what law is and
ought to be, all combine to suggest growing potential to build a family law settlement system
designed for self-represented parties; in other words, a legitimate social policy goal upon which a
unique family law tribunal could be founded.
1.4 Summary
This chapter has outlined the scope of the institutional analysis undertaken in this thesis and
discussed vulnerability theory as a theoretical support for placing the institutional effects of
social institutions upon vulnerable populations at the centre of social policy. Changing social
norms with respect to family dissolution have been suggested as further support for considering
alternative institutional approaches to family law dispute resolution and it has been suggested
that a transition from courts to tribunal, at least for custody cases, is neither a novel nor radical
idea, and it warrants a number of further forms of analysis.
25
2. COURTS AND FAMILY LAW
This chapter reviews prior research and writing as to the progress of the access to justice
movement, the reported experiences of self-represented litigants, the value of structured
decision-making, the importance of truth-finding, and the effects of formality in court-based
family law dispute resolution processes. It discusses some potential objections to this project
The parties had a highly conflictual marriage. Eventually the wife abruptly left,
taking the children to her parents’ home in another town, and later informing the
husband that the marriage was over. The husband, unemployed, poorly educated
and volatile, was from a wealthy family. He hired an excellent lawyer and brought
an application for interim custody based upon the wife absconding with the
children. The wife, who earned little more than minimum wage, was represented at
various times but in the main was self-represented. The husband was awarded
interim sole custody.
Years later there had not yet been a trial. Both sides had ordered private
assessments that took a very long time to produce; the court was booking well into
the future not only for trials, but for the series of mandatory pre-trial conferences;
counsel had other commitments; custody was only one issue between the parties
and despite repeated orders for disclosure the husband was not forthcoming,
creating further delay from which he benefitted.
Throughout this time, the children remained enrolled in school near the father’s
home, continued their friendships and close relationships with extended family
members. The wife had moved in with her parents, who lived over an hour’s drive
away.
At the Trial Management Conference, the last in a series of conferences in which
settlement was explored and encouraged, the conference judge urges the couple to
come to terms yet wearily remarks that the history of the case gives him little
reason to hope they will.
On the literal verge of trial, in the courthouse, the husband’s lawyer presides over
a long and intense last-ditch settlement meeting, during which the wife is self-
represented, and the parties finally reach an agreement. Settlement seemingly
enabled by the arrival of the wife’s understanding that she cannot overcome the
status quo established at the outset and, perhaps, the husband’s realization of his
exposure to judicial reprisal for his substantial contribution to delay.
26
under the heading “But We Do That Already” and briefly discusses innovative court models and
systems.
2.1 Access to Justice
Access to justice is a matter of political will.
80
The Ontario Ministry of the Attorney General’s “Four Pillars” family law reform initiative,
launched in 2008, was based upon submissions to the Attorney General by a number of
stakeholder groups, including the Ontario Bar Association, the ADR Institute of Ontario and the
Ontario Association for Family Mediation, with support from the Ontario Collaborative Law
Federation and the Association of Family and Conciliation Courts.
81
The “Four Pillars” were
hailed for representing the arrival of sufficient consensus to mobilize reform;
82
although sparse
funding and a piecemeal approach to implementation were initially noted as concerns.
83
It has
since been asserted that the Four Pillars have resulted in better access to information, improved
intake processes, improved access to legal advice, and streamlined court processes.
84
Surveys of
Ontario Family Law Information Centre users and participants in similar programs in British
Columbia have reported that eighty percent of study participants regard program services as
effective,
85
although concerns remain over underfunding and heavy reliance upon volunteer
lawyers and law students.
86
80
Supra, footnote 16. [Roach and Sossin]
81
Barbara Landau et al., “Home Court Advantage; Creating a Family Law Process That Works” Ontario Bar
Association (2009).
82
Supra, footnote 9 at pages 271. [Bala, Reforming Family Dispute Resolution]
83
See: supra, footnote 22 at page 413. [Semple and Rogerson]
84
Supra, footnote 9 at pages 280-297. [Bala, Reforming Family Dispute Resolution]
85
Supra, footnote 22 at page 420. [Semple and Rogerson] The authors report that “relatively high” numbers of
survey subjects were not yet involved in a court process.
86
Supra, footnote 9, at page 314. [Bala, Reforming Family Dispute Resolution]
27
Following the Four Pillars reforms, numerous studies have indicated that low and middle-income
groups in Canada continue to have significant unmet legal needs.
87
The 2010 Ontario Civil
Needs Project found that in family law matters thirty percent of low and middle-income
Ontarians have unmet legal needs, and in general, almost eighty percent of Ontarians believe the
justice system privileges the wealthy.
88
In 2011, Ontario Chief Justice Warren K. Winkler
characterized the family justice system as “in crisis” and “in desperate need of repair,”
89
and the
Rule of Law Index, published in the same year by the World Justice Project, placed Canada
among the top ten countries in the world with respect to various categories related to upholding
the rule of law, but in the category of “access to civil justice,” ranked Canada sixteenth out of
twenty-three high income countries.
90
Similarly, a 2012 White Paper reported that seventy
percent of self-represented litigants surveyed across Canada indicated that their needs are not
adequately serviced in all types of courts.
91
The White Paper pointedly describes what is at stake
in the access to justice movement: whether meaningful access to justice systems is a legitimate
societal expectation, or a privilege:
92
The justice system and its stakeholders must recommit to the core dispute resolution
purpose for which the system was designed: to provide a meaningful, fair, just and
accessible venue for citizens– represented or not –to resolve their disputes.
93
87
Justice Thomas A. Cromwell, “Access to Justice: Towards a Collaborative and Strategic Approach” 33d
Viscount Bennett Memorial Lecture (2012), 63 U.N.B.L.J. 38.
88
Ontario Civil Needs Project Steering Committee Report (2010), online:
http://www.lsuc.on.ca/media/may3110_oclnreport_final.pdf
89
Warren K. Winkler, “Address to the Carleton County Law Association” online:
http://www.ontariocourts.on.ca/coa/en/ps/speeches/2011-Annual-Institute-Family-Law-CCLA.htm#
90
Supra, footnote 87. [Cromwell, Towards a Collaborative]
91
Trevor C.W. Farrow, Diana Lowe, Bradley Albrecht, Heather Manweiller, Martha E. Simmons, Addressing
the Needs of Self Represented Litigants in The Canadian Justice System: A White Paper Prepared for the
Association of Canadian Court Administrators” (March 27, 2012) at page 20 (the “White Paper”) online:
http://www.cfcj-
fcjc.org/sites/default/files/docs/2013/Addressing%20the%20Needs%20of%20SRLs%20ACCA%20White%20
Paper%20March%202012%20Final%20Revised%20Version.pdf
92
Ibid., at pages 24-25. [Farrow et al., White Paper]
93
Ibid., at page 25. [Farrow et al., “White Paper]
28
The Family Justice Working Group Report
94
was released in 2013 by the Action Committee on
Access to Justice in Civil and Family Matters, a committee of the Canadian Bar Association
formed with the encouragement of Supreme Court of Canada Chief Justice Beverly McLachlin,
and comprised of leaders in civil and family justice.
95
The Report describes substantive family
law as “highly evolved and comprehensive,” and the procedures by which it is applied as
“increasingly complex, unaffordable and inaccessible.”
96
The Report lists changes in the practice
of family law over the past twenty-five years, including “revised rules and forms, increased
involvement of judges in settlement discussions, legal information programs, subsidized
mediation, post-separation parenting programs and the adoption by the legal profession of “non-
adversarial approaches to family law,”
97
and concludes:
Canadians do not have adequate access to family justice. For many years now reports
have been telling us that cost, delay, complexity and other barriers are making it
impossible for many Canadians to exercise their legal rights.
98
[emphasis added]
The Family Justice Working Group Report has an activist tone; it states that “good ideas alone
are not enough,” suggesting it is time for “concrete action and full implementation of ideas that
have been on the books for some time now.”
99
As noted above, the Report states that family law
research and previous inquiries have indicated a need for “a more dramatic shift to non-
adversarial approaches,” and uses language such as “drastic change,” “fundamental overhaul”
and “paradigm shift.”
100
The Report contains thirty-three specific recommendations aimed at
94
Supra, footnote 23. [Family Justice Working Group Report]
95
Ibid., at page 1. [Family Justice Working Group Report]
96
Ibid. [Family Justice Working Group Report]
97
Ibid., at page 2. [Family Justice Working Group Report]
98
Ibid., at page 8. [Family Justice Working Group Report]
99
Ibid., at page 3. [Family Justice Working Group Report]
100
Ibid., at page 3. [Family Justice Working Group Report]
29
more consensual processes, revised substantive law, access to legal services, and reformed court
processes. Broad policy goals include: a “cultural change” in the justice system, a client-centered
perspective (in place of a “professional- centered” or “access-to-lawyers” orientation), expanded
legal aid funding, a greater role for paralegals and other non-lawyer experts, post-resolution
support for families, completing the unification of family courts in Ontario, and increased
funding for all family justice programs and services.
101
The 2013 Access to Civil & Family
Justice: A Roadmap for Change Report also calls for deep reform, suggesting a child-centred
multi-disciplinary model for family dispute resolution.
102
Justice Cromwell has remarked that “a mountain of evidence” indicates that lack of access to
courts and lawyers is only one aspect of the access to justice problem.
103
The overarching
concern which undermines the accessibility of courts, and drives demand for alternatives to
courts, is the well-known potential for family litigation to worsen conflict and damage long-term
relationships. Indeed, the messaging of family courts appears to be “Danger - Do Not Enter.” In
case this assertion strikes the reader as hyperbolic, the following passage from Judge Harvey
Brownstone’s book Tug of War: A Judge's Verdict on Separation, Custody Battles, and the Bitter
Realities of Family Court,
104
illustrates the point:
Everyone who works in family law, including judges, agrees on two things: family court
is not good for families, and litigation is not good for children. The emotional carnage
resulting from family litigation, and its impact on the unfortunate children of warring
parents, cannot be overstated. And yet, family courts everywhere are jammed with
couples asking judges to decide who gets custody of their children, how often the
101
Ibid. [Family Justice Working Group Report]
102
Action Committee on Access to Justice in Civil and Family Matters. “Access to Civil & Family Justice: A
Roadmap for Change” (2013), online:
http://www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf
103
Supra, footnote 87 at page 39. [Cromwell, Towards a Collaborative]
104
Harvey Brownstone, Tug of War: A Judge's Verdict on Separation, Custody Battles, and the Bitter
Realities of Family Court (Toronto: ECW Press, 2009).
30
children will see the noncustodial parent, how the matrimonial property is to be divided,
and how much spousal and/or child support must be paid. More surprisingly, an
alarmingly high number of people appear in court without a lawyer and try to navigate
the court process on their own, without any idea of their rights and obligations, the
procedural requirements, the rules of evidence, or the types of orders a court can and
cannot make. As you might expect, the results for these people are often extremely
frustrating at best and disastrous at worst…
105
Justice Brownstone has been quoted in academic literature
106
and government sponsored
research,
107
suggesting the weight of his views extends beyond the popular culture audience for
which Tug of War appears to have been written.
A similarly alarming tone is evident in the following comments of Quinn, J. in the 2010 case,
Bruni v. Bruni,
108
which was reported in the Globe and Mail:
109
This is yet another case that reveals the ineffectiveness of Family Court in a bitter
custody/access dispute, where the parties require therapeutic intervention rather than
legal attention. Here, a husband and wife have been marinating in a mutual hatred so
intense as to surely amount to a personality disorder requiring treatment.
110
Chief Justice Warren K. Winkler’s commentary, referred to above, includes a specific reference
to the “stress that the court procedure places on the participants in an already highly emotional
dispute,” and compares the effect of the legal system on family disputes to “throwing gasoline on
105
Ibid., at page 3. [Brownstone]
106
See, for example: Rachel Birnbaum, Nicholas Bala and Lorne Bertrand, “The Rise of Self-Representation
in Canada's Family Courts: The Complex Picture Revealed in Surveys of Judges, Lawyers and Litigants”
(2012) 91 Can. B. Rev. 67 at page 86; see also infra, footnote 714 at page 166, fn 75. [Mosher].
107
The Federal-Provincial Territorial Ad Hoc Working Group on Family Violence, “Making the Links in
Family Violence Cases: Collaboration Among the Family, Child Protection and Criminal Justice Systems”
online: https://www.justice.gc.ca/eng/rp-pr/cj-jp/fv-vf/mlfvc-elcvf/mlfvc-elcvf.pdf
108
Kirk Makin, “In family court, a judge turns to ridicule to defuse the rage” (Globe and Mail, December 16,
2010) referring to Bruni v. Bruni, 2010 CarswellOnt 8992 (S.C.J).
109
Ibid. [Globe and Mail]
110
Supra, footnote 108 at para. 2. [Bruni]
31
a fire.”
111
The now-retired Chief Justice asserted a need for “dramatic and pragmatic revision” of
the manner in which family law services are delivered.
112
The apparent intractability of the problems discussed above is illustrated by a 2016 study
undertaken by Michael Saini, Rachel Birnbaum and Nicholas Bala,
113
in which new empirical
research was conducted to better understand the experiences of parents in family law
proceedings. The authors note that over the past four decades, services for separating families
have been expanded; they summarize these developments as follows: mandatory attendance at an
information program, improved information services at courts, special support services for
domestic violence cases, improved access to legal advice through duty counsel for low income
litigants, representation through legal aid for the lowest income groups for a limited range of
issues (with greater access for domestic violence cases), early access to alternatives to litigation
including court- connected mediation which is government-subsidized for low and middle
income parties, increased use of judicial case conferencing and case management, and continued
services of the Ontario Office of the Children’s Lawyer. While the authors note there has not yet
been comprehensive, coordinated research on the effects of recent family law reforms, they
report a current and growing awareness of the need to improve court services to improve access
to justice:
Despite the efforts since 2010 to increase family dispute resolution services in Ontario,
with a particular emphasis on mediation, at best many parents continue to experience
dissatisfaction, while at worst many feel overwhelmed with the emotional and financial
strain during a family breakdown. In this study we found that many reported that they do
111
Supra, footnote 89. [Winkler]
112
Law Times, September 19, 2010, Online:
http://www.lawtimesnews.com/201009207556/Commentary/Editorial-Winkler-sparks-important-debate-on-
mediation
113
Michael Saini, Rachel Birnbaum and Nicholas Bala, “Access to Justice in Ontario’s Family Courts: The
Parents’ Perspective” (2016) 37 Windsor Rev. Legal & Soc. Issues 1.
32
not know enough about what services there are or how to access them. This is consistent
with what has been found in prior studies
114
…This study highlights the need for a broad
public policy discussion about the appropriate role of government in meeting the needs of
families and children post-separation.
115
The authors of this recent study surveyed 241 parent-litigants, a relatively large number of whom
had received advice from a lawyer (72.6% had received advice; 27.4% had not) and interviewed
an additional 22 parent-litigants. Specific, seemingly persistent, problems identified in the
interview component of the study, reported in 2016, include:
- the court process provides the opportunity for ex partners to use children as a means of
manipulation and retaliation for issues that occurred during the relationship;
- many parents are concerned about the financial strain caused by litigation as well as the
emotional stress associated with the court process;
- the majority of parents describe the court process as inadequate for addressing their
needs, resulting in decreased finances, increased stress, and increased conflict;
specifically, the length of the family court process, the lack of enforcement of court
orders, financial strain, emotional strain, “social risks,” the lack of helpful online
resources and free legal advice, and access to therapeutic support;
- the emotional impact of the court process seems to exacerbate emotional vulnerabilities
related to the family breakdown;
- online services are unhelpful and unclear, “makes it sound super easy and anyone can do
it” but not relevant for the majority of people who are separating; and
- half an hour with a free lawyer is not enough.
114
Ibid., at page 22. [Saini, Birnbaum and Bala]
115
Ibid., at page 24. [Saini, Birnbaum and Bala]
33
The persistence of the problems for children in connection with high conflict family law
litigation is illustrated in a 2017 review of the Ottawa Coordinated Case Management Project for
High Conflict Custody and Access Cases, in which by-now familiar themes are repeated. It states
that the issues involved in family law are increasingly complex, both legally and clinically, and
the problem is complicated by increasing numbers of self-represented litigants, the adversarial
nature of the legal system, delays inherent in the court process, and diminished government
funding for family services. Most important, in my view, it states that high conflict family
litigation can “exacerbate and perpetuate parental conflict leaving children at risk of negative
long-term adjustment,”
116
specifically: “lower school performance, behavioral problems,
psychological and social adjustment difficulties, lower self-esteem, and mental health issues such
as depression and eating disorders and alcohol and drug problems.”
117
2.2 Self-Represented Litigants
Many of my lawyer friends freely admit that they could not possibly afford their own
services... It must be asked whether, for a large segment of the population, we have a
functioning civil justice system at all.
118
(a) Experiences of Self-Represented Litigants
Reports on the rate of self-representation in Canadian family law cases vary, in part because
parties may be represented or not at various stages of a proceeding. The federal government
estimated, as of 2012, that between sixty-four and seventy-four percent of parties are self-
represented at the time of filing a court application, and forty to fifty-seven percent are self-
116
Rachel Birnbaum, Michael Saini, Mark MacAuley, “Ottawa Coordinated Case Management Project for
High Conflict Custody and Access Cases: Lessons Learned” (2017), 36 Can. Fam. L. Q. 291.
117
Ibid., footnote 67. [Birnbaum et al., Ottawa Coordinated Case Management]
118
Supra, footnote 87 at page 40. [Cromwell, Towards a Collaborative]
34
represented when appearing in court.
119
Birbaum and Bala quote Justice Winkler’s estimate of
seventy percent, on average, and further cite Ontario government data that estimates the rate of
self-representation at sixty-two percent in 2006-2007, and fifty-four percent in 2010.
120
American research indicates a rate of self-representation of over eighty percent in family law
cases.
121
According to recent Canadian empirical research studies, the number of self-represented
litigants is likely to increase.
122
Among senior members of the judiciary, Chief Justice McLachlin has remarked that for self-
represented litigants, “[p]utting the facts and the law before the court may be an insurmountable
hurdle;”
123
Chief Justice Finch of the British Columbia Court of Appeal has remarked that courts
are not the appropriate venue for solving underlying social problems, and it is unrealistic for
courts to address “mental illness, substance abuse, poverty, lack of education, inadequate or no
parenting, and dysfunctional relationships,” as these problems require “well-considered,
evidence-based policy solutions;”
124
and Justice Cromwell has observed that the delay and added
cost associated with self-represented litigants may “even jeopardize the rights of other,
represented litigants.”
125
Commentary contained in the Canadian Judicial Council’s Statement of
119
Government of Canada, Department of Justice, online: https://www.justice.gc.ca/eng/rp-pr/fl-lf/divorce/jf-
pf/srl-pnr.html
120
Rachel Birnbaum and Nicholas Bala, “Views of Ontario Lawyers on Self-Represented Litigants” (2012), 63
U.N.B.L.J. 99 at pages 123-124.
121
See: Amy G. Applegate and Connie J.A. Beck, “Self-Represented Parties in Mediation: Fifty Years Later it
Remains the Elephant in the Room” (2013), 51 Fam. Court Rev. 87.
122
Birnbaum and Bala, “Experiences of Ontario Family Litigants” online: http://docplayer.net/16318797-
Experiences-of-ontario-family-litigants-with-self-representation-rachel-birnbaum-1-nicholas-bala-2.html
123
Chief Justice Beverly McLachlin, “The Challenges We Face” (2007), 40 U.B.C. L. Rev. 819 at page 822.
124
British Columbia Chief Justice Lance S.G. Finch, Remarks (June 6, 2013) online:
http://www.courts.gov.bc.ca/court_of_appeal/about_the_court_of_appeal/speeches/Retirement%20Dinner%20
Remarks%20%28Final%20-%20Website%29.htm at paragraph 37.
125
Supra, footnote 87. [Cromwell, Towards a Collaborative] See also supra, footnote 120, at pages 123-124.
[Birnbaum and Bala, Views of Ontario Lawyers]
35
Principles on Self Represented Litigants and Accused Persons, summarizes the problem as
follows:
Self-represented persons are generally uninformed about their rights and about the
consequences of choosing the options available to them; they may find court procedures
complex, confusing and intimidating; and they may not have the knowledge or skills to
participate actively and effectively in their own litigation... the average person may be
overwhelmed by the simplest of court procedures.
126
Birnbaum and Bala’s recent research on the experience of self-represented family litigants in
Ontario, reports that sixty-four percent of those surveyed describe the family court system as
“difficult or very difficult” to navigate,
127
and Julie Macfarlane’s National Self Represented
Litigants Project study describes the awkward fit between self-represented litigants and
adversarial court systems, as follows:
The foundational principle of the justice system (even in family matters) is adversarial
advocacy. Judges and lawyers are accustomed to framing every interaction in these terms.
Self-represented parties who lack training in law do not fit easily into this framework;
and when the make efforts to adopt this strategy, they are often seen as unreasonable,
ignorant and obstructive.
128
The Macfarlane report points to an urgent need for innovation in dealing with self-represented
litigants; its recommendations include: intensive face-to-face interaction at the intake stage; more
process-related and tactical online information, and less emphasis on substantive law, interactive
information systems; access to counseling services, re-thinking duty counsel, adopting a
coaching model for legal advice services, onsite mediation services preceded by an orientation
session, expanding the scope of what non-lawyers can do, and re-orienting the justice system
126
Canadian Judicial Council “Statement of Principles on Self Represented Litigants and Accused Persons”
(2006) online: https://www.cjc-ccm.gc.ca/cmslib/general/news_pub_other_PrinciplesStatement_2006_en.pdf
127
Supra, footnote 122. [Birnbaum and Bala, Experiences of Ontario Family Litigants]
128
Julie Macfarlane, “The National Self Represented Litigants Project: Identifying and Meeting the Needs of
Self Represented Litigants, Final Report” (May 2013) at page 108, online:
https://www.lsuc.on.ca/uploadedFiles/For_the_Public/About_the_Law_Society/Convocation_Decisions/2014/
Self-represented_project.pdf
36
toward self-represented litigants through a multi-professional, problem-solving approach.
129
The
study reports that the personal costs of self-representation occur on a scale which “commands
recognition,” and may include the depleted savings, employment instability as a result of time
devoted to litigation, and various mental and physical health issues, including debilitating
anxiety over court appearances.
130
(b) Reasons for Self-Representation
Not surprisingly, research suggests that self-representation is primarily a result of the inability to
“afford” legal services.
131
The concept of “affordable” is not straightforward. Even those with
sufficient assets or resources to pay for or finance legal representation may decide that the
financial sacrifices involved, often compared to the cost of a university education or simply
“using up the family assets,” are too great. Legal aid is, of course, only available to those with
income below the regulated threshold, although greater access to representation is available in
domestic violence cases,
132
with the result that among cases where eligibility is based upon
income, middle class people are perhaps the most vulnerable subjects in family litigation
processes.
129
Ibid., at page 629. [Macfarlane]
130
Ibid., at page 14.
131
Ibid., at page 8. [Macfarlane]
132
Supra, footnote 113 at page 9. [Saini, Birnbaum and Bala]
37
Both legal and cultural factors have been suggested to account for ever-rising numbers of self-
represented litigants including, “Legal aid cuts...Mistrust of lawyers. The "do-it-yourself"
credo. An unwillingness to accept legal advice. TV lawyer shows that make it look easy.”
133
Birnbaum and Bala’s research referred to above indicates that a significant minority of self-
represented litigants regard representation as unnecessary; they do not believe lack of
representation negatively affects outcomes.
134
The Ontario Civil Legal Needs Project reports an
increasing desire on the part of litigants to take control of their legal problems, and concludes
that a majority of Ontarians obtain legal advice when faced with legal problems, which they
generally find satisfactory, but still indicate a preference for taking part in solving legal
problems.
135
It obvious that a shift in power dynamics has occurred as a result of information technology. The
Canadian Bar Association has acknowledged that some clients now question “the basic value
proposition of lawyers,”
136
and has urged the legal profession to adapt to new expectations,
noting that clients now demand lower costs, more participation in decision-making and better
information on risks and potential outcomes, all of which is in keeping with other commentary
suggesting an hourly billing structure is less well tolerated among those who are capable of
133
D. A. Rollie Thompson, “No Lawyer: Institutional Coping with the Self–Represented” (2001), 19 Can Fam
LQ 455. See also Jeff Giddings, Merran Lawler and Michael Robertson, “It’s More Like Judge Judy” – Self-
Help in a Hybrid Legal Forum” (2009), Paper presented to the International Legal Aid Group Conference,
Wellington, New Zealand, online: http://www.ilagnet.org/conf_2009/papers/ILAG_Paper_-
_Giddings_Lawler_&_Robertson11-3-09%5B1%5D.pdf
134
Supra, footnote 122. [Birnbaum and Bala, Experiences of Ontario Family Litigants]; see also supra,
footnote 91 at page 4. [Farrow et al., White Paper]
135
Supra, footnote 88. [Ontario Civil Needs Project]
136
Canadian Bar Association Legal Futures Initiative, “The Future of Legal Services in Canada: Trends and
Issues” (June 2013) online: http://www.cbafutures.org/CBA/media/mediafiles/PDF/Reports/trends-isssues-
eng.pdf at page 16.
38
gaining significant information and understanding by self-informing.
137
Indeed, the term “digital
divide,” coined to capture the privilege once associated with access to computers and the
capacity to fully exploit their uses, already seems anachronistic. To the extent such a divide
remains, it likely applies to only the very marginalized – those who are perhaps more likely to
gain access to legal aid.
The self-help ethic is now supported by an increasingly diverse range of resources, propelled by
information-technology. At least 540 Canadian law and legal process blogs and podcasts are now
reported to exist, featuring advice and commentary from lawyers, academics and social justice
advocates.
138
The Macfarlane study referred to above combines research with activism; it is a
component of the “National Self-Represented Litigants Project,” which is “committed to
assisting all those affected by the self-represented litigant phenomenon,”
139
and recently acquired
intervenor status in Pintea v. Johns,
140
in which an order dismissing the claim of a self-
represented litigant, with costs, was reversed by the Supreme Court of Canada.
As all of the above suggests, the concept of self-help, in the context of individuals dealing with
social institutions, seems increasingly perceived as much as a reflection of competence,
autonomy and self-reliance, than as piteous disadvantage – a status claim implying spare time,
intellectual capacity, and a refusal to succumb to traditional (and for some, discredited) power
structures.
141
It is important to note the obvious fact that not all self-represented litigants are
137
Richard Susskind, The End of Lawyers? (Oxford University Press, 2008).
138
Canadian Law Blog Awards (2017) website: http://www.clawbies.ca
139
National Self-Represented Litigants Project website: https://representingyourselfcanada.com
140
Pintea v. Johns, [2017] 1 SCR 470.
141
Supra, footnote 76. [Minow]
39
equally empowered by the self-help ethic; as the research noted above points out, only a minority
of self-represented litigants believe representation is irrelevant to outcomes. To the extent there
has been an evolution from stigma to status, it may explain the growing number of middle class
self-represented litigants, but it does not necessarily imply that court processes have ceased to be
a source of profound difficulty, and in family law cases, damage, for self-represented parties
(and their dependents) as a whole.
Finally, the Macfarlane study referred to above indicates that self-represented parties question
the inability of paralegals to provide family law services.”
142
Paralegals were active in Ontario
family law proceedings prior to 2007, at which time the Law Society of Ontario assumed
responsibility for their licensing and simultaneously excluded family law from the scope of
permitted paralegal practice. According to the Law Society, the “complexity of family law
requires expertise only a lawyer can provide.” A motion to reinstate paralegals in family matters
was put forward in 2010 but withdrawn following a vigorous campaign of opposition by the
Ontario Bar Association and the Family Lawyers Association.
143
Bertrand, Birbaum and Bala
report in a 2014 study that seventy-five percent of judges surveyed approved of family law
paralegals, but only twenty-five percent of lawyers shared that view.
144
The Attorney General of
Ontario and the Law Society of Upper Canada, as it then was, conducted a review of family legal
services in 2016, which recommended the development of a specialized license for paralegals
which would allow them to provide specified family law legal services, such as legal advice
document preparation, representation in mediation, and court appearances up to, but not
142
Supra, footnote 2 at page 13. [Macfarlane]
143
Supra, footnote 60. [Law Times, September 19, 2010]
144
Supra, footnote 106. [Bertrand, Birnbaum and Bala]
40
including, trial. This recommendation was opposed by the family law bar; the Law Society has
nonetheless indicated support for the proposal, and a new regulatory framework may yet
emerge.
145
2.4 Clear Law: Structured Decision-Making
Broad discretion and vague legal standards have been criticized for creating uncertainty in the
negotiating environment, encouraging swift positioning and pursuit of claims because outcomes
are unpredictable, and leading other claims to be abandoned due to the costs and other barriers
inherent in “individualized justice systems;”
146
that is, court systems. Mnookin and Kornhauser
point out that “different rules give various amounts of bargaining chips to the parties,” and an
inability to understand the rules - because they are not articulated or articulated only vaguely -
results in the need for legal advice to understand one’s “bargaining chips” and forecast probable
outcomes.
147
An inability to assess probable outcomes may encourage extreme positions and contribute to the
need for expert evidence to substantiate these positions, which lengthens the dispute resolution
process, and advantages the party with deeper financial resources and greater capacity to
withstand the inherent stresses. Moreover, immediate financial needs, often coupled with
inaccurate information about a spouse's finances, may lead the weaker party to feel greater
settlement pressure, and thereby frame their negotiation goals in terms of what they believe they
145
Lisa Trabucco, What Are We Waiting For: It Is Time to Regulate Paralegals in Canada (2018) 35 Windsor
Y.B. Access to Just. 149.
146
Supra, footnote 27 at page 102. [Cromwell, Neither Out]
147
Mnookin, Robert H.; Kornhauser, Lewis, “Bargaining in the Shadow of the Law: The Case of Divorce”
(1979), 88 Yale L.J. 950 at page 968.
41
can reasonably (and more easily) expect to get, rather than actual entitlements.
148
A study of
lawyers’ views on the self-represented litigant phenomenon arrives at the important, but
unsurprising, conclusion that women who are victims of domestic violence are “especially
vulnerable to making unfavourable economic settlements;”
149
the need to ensure the quality of
settlement in cases of high parental conflict is well understood.
150
In family law the preference for rule-based law or vague law varies depending upon context; in
the application of the best-interests-of-the-child test broad discretion is generally considered
necessary to achieve the “individualized justice” deemed essential in these cases, whereas in the
determination of child support and more recently, spousal support, a high degree of structure is
seen as beneficial. The effect of structure on the negotiating environment can be illustrated by
again looking at spousal support. According to a review study, the most frequent application of
the SSAG takes the form of lawyers shaping the expectations of both payor and recipient clients,
and preliminary evidence suggests fewer spousal support cases now require adjudication.
151
What is more, Carol Rogerson has noted a “hunger” among lawyers and judges for additional
guidance with respect to the discretionary entitlement aspect of spousal support law which, as
noted, the SSAG do not address.
152
148
Marcia Neave, “Resolving the Dilemma of Difference: A Critique of The Role of Private Ordering in
Family Law” (1994), 44 University of Toronto Law Journal, 97 at page 123-126.
149
Supra, footnote 120 at page 113. [Birnbaum and Bala, Views of Ontario Lawyers]
150
Noel Semple, “Judicial Settlement Seeking in Parenting Cases: A Mock Trial (2013) J. Disp. Resol. 303 at
page 303.
151
Carol Rogerson and D.A. Rollie Thompson, “The Canadian Experiment with Spousal Support Guidelines”
(2011-2012), 45 Fam. L.Q. 241 at page 261. [Rogerson and Thompson, Canadian Experiment]
152
Ibid., at page 264. [Rogerson and Thompson, Canadian Experiment]
42
Legal custody presumptions have come and gone; the shift from paternal preference for custody
based upon a child’s status as property of the father to maternal preference for custody occurred
in step with the first wave of feminism, which advocated for a different concept of the child: as a
person in need of nurturing and protection. Under the subsequent “tender years doctrine” the
mother was the preferred custodial parent for very young children.
153
The second wave of
feminism in the 1960s emphasized “formal equality,” and in much the same way that formal
gender equality led to declining awards of spousal support, rising numbers of women in the
workforce coupled with a formal equality framework contributed to rejection of the tender years
doctrine by 1972,
154
in favour of complete reliance upon the “gender neutral” best-interests-of-
the-child test.
An influential American Law Institute Report
155
states that the best-interests-of-the-child test
was better suited to the era of maternal preference presumptions, which allowed for its consistent
and relatively straightforward application. The Report acknowledges that the maternal preference
presumption is no longer socially viable but endorses the use of alternative presumptions, which
have become the subject of “gender wars.”
156
The rationale for presumptions is obviously to
foster consistency and predicable outcomes, and consequently less litigation and a fairer
negotiating environment. For example, a presumption in favour of the “primary caregiver” would
make it less likely for custody litigation to be used as a bargaining chip, that is, less probable that
153
Linda Elrod and Mildred D. Dale, “Paradigm Shifts and Pendulum Swings in Child Custody: The Interests
of Children in The Balance” (2008), 42 F.L.Q. No. 1, 381 at page 391.
154
Richard A. Warschak, “Parenting by the Clock: The Best Interest of the Child Standard, Judicial Discretion,
and the American Law Institute Approximation Rule” (2011-2012), 41 U. Balt. L. Rev. 83 at page 92.
155
American Law Institute, “Principles of the Law of Family Dissolution, Analysis and Recommendations”
(2002), 8:1 Duke J. Gender L. & Pol’y, 1 online,
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1038&context=djglp
156
Elizabeth Scott and Robert E. Emery, “Gender Politics and Child Custody: The Puzzling Persistence of The
Best-Interest Standard” (2014), 77 Law & Contemp. Probs. 69 at page 70.
43
a primary caregiver will make economic concessions to retain this role. Some American
jurisdictions have adopted the “primary caregiver” presumption, and where it has not been
adopted, it is often used as a factor in the application of the best-interests-of-the-child test.
157
As
the name suggests, the person who acted as the primary caregiver before separation is presumed
to become the custodial parent, sometimes interpreted as “sole custody” – a “winner-take-all
outcome – and sometimes with parenting time and responsibilities of the non-custodial parent
determined on a case by case basis. This approach is not as uncomplicated as it might seem; it
requires factual determinations as to which parent performed what proportion of nurturing tasks,
or in some interpretations of the presumption, which parent is the primary “psychological
parent.” It is a retrospective exercise, however, and in that sense easier to apply than the best-
interests-of-the-child test, which requires a prospective determination of probable future
outcomes.
A somewhat different presumption, the “approximation rule,” divides parenting time and
responsibilities after separation in accordance with parental care-taking functions prior to
separation, subject to a number of exceptions. Critics of the approximation rule argue that: it
increases post-separation conflict as it is difficult to apply, as it requires a more thorough
analysis of parenting patterns than the primary caregiver presumption; it provides a poor estimate
of parental contribution to the child’s best interests, as it conflates quantity and quality of child
157
Rebecca Aviel, “A New Formalism for Family Law” (2013), 55 Wm. & Mary L. Rev. 2003 at pages 2019-
2020; the author notes that West Virginia and Minnesota have “experimented” with a primary caregiver
presumption; in “Pendulum Swings,” Elrod, et al. note that in Minnesota this led to a “frenzy of litigation,”
see: supra, footnote 404 at page 401.
44
care;
158
and, it may lead to the “commodification of relationships”
159
whereby parties modify
their behaviour to affect legal outcomes. Despite these criticisms, the approximation rule, like the
primary caregiver presumption, has the benefit of being a retrospective test and seems consistent
with the evolution in Canada toward a general societal expectation that parents should share, in
some proportion, in the care of their children.”
160
Finally, a presumption in favour of shared parenting, reportedly pursued by “fathers’ rights
advocates,”
161
has twice been proposed in Canada in the form of amendments to the Divorce
Act.
162
It was opposed by mothers’ advocacy groups and the Canadian Bar Association, and both
times failed to pass.
163
It has been observed that there is a lack of reliable empirical research on
the effects of different custody arrangements, and although, in general, shared parenting is
thought to be beneficial for amicable post-separation families that can bear the additional costs, it
is not the norm, and on average fathers reportedly have significantly less parenting time than
mothers in both separated and intact families.
164
A sort of middle ground, in the form of express
support for shared parental responsibility together with a principle of maximizing the parenting
time of each parent (the latter of which already exists in Canada under the Divorce Act) was
legislated in Australia in 2006.
158
Supra, footnote 154 at pages 88-89. [Warschak, Parenting by the Clock]
159
Yuval Feldman and Shahar Lifshitz, “Behind the Veil of Legal Uncertainty” (Spring 2011), 74 Law &
Contemp. Probs. 133.
160
Rachel Birnbaum, Nicholas Bala, Shely Polak and Nida Sohani, “Shared Parenting: Ontario Case Law and
Social Science Research” (2016), 35 Can. Fam. L. Q. 139 at page 142.
161
Supra, footnote 154 at page 95. [Warschak, Parenting by the Clock]
162
Supra, footnote 14. [Divorce Act]
163
Denise L Whitehead, “Is Shared Custody the Alchemy of Family Law” (2015), 35 Can. Fam. L. Q. 1 at
page 2.
164
Supra, footnote 160 at page 142. [Birnbaum at al., Shared Parenting]
45
In support of more structured family law it has been observed that abstract goals of equality and
gender neutrality have unduly overshadowed the need for practical and workable decision-
making following separation, and the “entire area is permeated with symbolism that relates only
tangentially to the realities of divorce.”
165
Further, an examination of symbolism and metaphor in
child custody dispute resolution suggests that inherited myths and symbols affect outcomes as
much as evidence and reasoning.
166
To the extent this is so, the value of “individualized justice”
is diminished. Which is not to suggest presumptions are value-free; one criticism of the “primary
caregiver” presumption is that in its application by judges it can be affected by contested notions
of the ideal family, with the result that mothers who work outside the home are less likely than
“stay-at-home mothers” to be regarded as the primary caregiver, regardless of the actual
childcare responsibility undertaken.
167
The well-known effects of vague legal standards on the negotiating environment have been
tolerated, presumably based upon the assumption inherent in adversarial systems that there can
always be a trial in which power imbalances will be compensated for, with the assistance of legal
representation or judicial activism. This assumption is undermined by “barriers to justice” in
their many forms, discussed above.
165
Supra, footnote 25. [Fineman, Anchoring Equality]
166
Elizabeth J. Hughes, “Mother’s Vicarious Hand: Primary Caregiving Reconceived as Relationship and
Responsibility” (2002), 20 Can. Fam. L. Q. 467.
167
Linda L. Berger, “How Embedded Knowledge Structures Affect Judicial Decision-Making: A Rhetorical
Analysis of Metaphor, Narrative, and Imagination in Child Custody Disputes” (2008-2009), 18 S. Cal.
Interdisc. L.J. 259 at page 261.
46
The best-interests-of-the-child test has been described as both entrenched and contested;
168
and
as “more an aspiration than a legal rule to guide custody decision-making.”
169
To the extent that
the test does not allow for the assessment of probable outcomes, it adds to the disadvantages
suffered by weaker parties. This, combined with the genuine preference for settlement in custody
and access cases (quite apart from the institutional forces that drive settlement pressure) and the
reported appetite for more structure in family law decision-making, combine to suggest potential
ethical demand for a more structured approach to the best-interests-of-the-child test.
2.4 Truth-Finding
168
See Robert van Krieken, “The “Best Interests of The Child” and Parental Separation: On the “Civilizing” of
Parents” (2005), The Modern Law Review, Vol. 68, No. 1 at page 25.
169
Supra, footnote 156 at page 69. [Scott and Emery, Gender Politics]
The mother is a high-status professional with a suspected drug problem, living
in another province; the father works in a family business. The child, a girl, is
about 4 years old. The parents have been separated, on and off, since shortly
after her birth. Both have retained excellent lawyers, over a period of years.
Both have anger problems – more precisely, their relationship is almost entirely
characterized by mutual contempt and outbursts of rage. The child flies to
access visits to see her father, accompanied by various friends and family.
There are occasionally scenes, on at least one occasion resulting in the
intervention of airport security and police.
Every kind of formal and informal conference has been prepared for and
attended by counsel during the years leading up to the point at which the wife’s
out-of-province lawyer telephones the husband’s lawyer to report that the wife
is now alleging the child was sexually assaulted by a relative, a boy about ten
years of age, in the presence of his younger sister during the child’s last access
visit. The allegation specifically concerns inappropriate touching at a family
event, while the children were playing out of sight of the adults. The wife’s
lawyer is not sure how serious this claim is or how it should be dealt with.
47
Family law disputes, especially custody cases, are highly fact driven. Indeed, precedent is not
always easy to find, or even considered relevant, because of the enormous variation in fact
patterns. A distinction is sometimes drawn between fact-finding and the more strenuous (some
would say, unrealistic)
170
task of “truth-finding.” This chapter discusses the importance attached
to accurate findings of fact in custody proceedings.
171
The archetypal adjudication paradigms, traditionally seen as competing and oppositional, are the
adversarial and inquisitorial models. A detailed list of the attributes of each is set out below;
broadly speaking, in a purely adversarial model the parties define the issues, determine the
evidence needed and obtain it, and present their cases to a single judge in a highly structured,
rule-bound and performative process. A purely inquisitorial model vests control in the decision-
maker to determine scope of the issues and the evidence needed, gather evidence and conduct
170
See: Carrie Menkel-Meadow, “The Trouble with the Adversary System in a Postmodern, Multicultural
World” (1996-1997), 38 Wm. & Mary L. Rev. 5 at page 5. The author writes that “truth is elusive, partial,
interpretable, dependent on the characteristics of the knowers as well as the known, and most importantly
complex.”
171
Clayson-Martin v. Martin, 2015 ONCA 596 at para. 109. (CanLII)
Following a discussion with the husband’s lawyer, the wife’s lawyer reports the
incident to the children's aid society in the husband’s jurisdiction.
The local police immediately contact the parents of the accused children, as it is
apparently the obligation of the society to report all sexual assault allegations
to police. Ultimately, all of the children (including the four-year old) attend at a
police station, where they are interviewed separately on video about the alleged
assault. The parents of the accused children are incensed.
The new video evidence is interpreted and summarized by the parties’ lawyers,
new affidavits are drafted and sworn, medical professionals are consulted,
further interim accounts for legal fees are rendered, and on it goes.
48
investigations; parties may or may not have a role in presenting evidence and questioning
opponents. Despite that the actual processes currently used in both Anglo-American and
European courts (and tribunals) are highly varied and seldom conform to either paradigm, these
archetypes remain useful reference points.
Adversarial ideology holds that that truth rises out of the dust of courtroom conflict;
172
however,
adversarial systems have a long history of attracting criticism for their lack of efficacy in truth-
finding,
173
including from judges. For example, Jerome Frank writes:
Even apart from differences in lawyer skills and resources, few attorneys believe that
adversarial combat is the most effective way to determine the truth about past events…
Lawyers tend to scoff at the truth and stress that it is unknowable whether such a thing
even exists. Finding out and revealing the truth is not their job. Instead, lawyers view the
adversarial system as a vehicle to deliver a desired result for a client. Often that objective
requires an attorney to confuse the issues or obscure the truth.
174
Similar criticism is far-ranging; it can be found in Roscoe Pound’s 1906 analysis of the “sporting
theory of justice,”
175
Jerome Frank’s “Fight Theory” Versus the “Truth” Theory,”
176
and in the
memoirs of a defense lawyer in the O.J. Simpson trial.
177
In defense of adversarial truth-finding in criminal proceedings it has been maintained that the
intense partisanship of adversarial proceedings, reflected in party-driven fact-finding, party-hired
172
Christopher Slobogin, “Lessons from Inquisitorialism” (2013-2014), 87 S. Cal. L Rev. 699 at page 710.
173
Ibid. [Slobogin]
174
Jerome Frank, Courts on Trial, Myth and Reality in American Justice (Princeton University Press, 1949) at
page 288; see also: Jerome Frank, “The Cult of the Robe” (1945), 28 Saturday Review of Literature 41.
175
Gerald W. Hardcastle, Adversarialism and the Family Court: A Family Court Judge's Perspective, 9 U.C.
Davis J. Juv. L. & Pol'y 59 (2005), quoting Roscoe Pound, The Causes of Popular Dissatisfaction with the
Administration of Justice, (1906), 29 A.B.A Rep. 395 online: https://law.unl.edu/RoscoePound.pdf
176
Supra, footnote 174. [Frank] Jerome Frank, Courts on Trial, Myth and Reality in American Justice
(Princeton University Press, 1949) at page 288.
177
Supra, footnote 172 at page 706. [Slobogin]
49
experts, and lawyer-coached witnesses, is a form of protection afforded to the accused, warranted
by the very high stakes of criminal trials, the higher standard of proof, and the disproportionate
power and resources of the state.
178
This rationale is understandable but it does not contradict a
study on high rates of wrongful criminal conviction, which reports, “[t]he number of wrongful
convictions each year is in the “thousands to tens of thousands...well above insignificant or
tolerable levels,” and recommends the use of blended adversarial and inquisitorial processes in
criminal trials;
179
nor does it go to the heart of the question of truth-finding. Relatively recent
academic literature conveys profound doubt as to the efficacy of truth-finding in adversarial
systems;
180
for example, one author’s remarks: “if one were asked to start from scratch and
devise a system best suited to ascertaining that in criminal cases…it is inconceivable that one
would create a system bearing much resemblance to the criminal justice process we now have in
the United States.
181
It seems significant for family law that a study reported in the law and economics literature
concludes that inquisitorial approaches are more effective in circumstances where the one party
is unaware of disclosure defects in material provided by the other;
182
that is, a common concern
with respect to income determination in child and spousal support cases. The study recommends
that judges, rather than parties or their lawyers, control the production of evidence in cases for
178
John H Langbein, “The German Advantage in Civil Procedure” (1985) 52 (4) University of Chicago Law
Review 823 at page 842.
179
Keith A. Findley, “Adversarial Inquisitions: Rethinking the Search for the Truth” (2011-2012), 56 N.Y. L.
Sch. L. Rev. 911 at page 912.
180
See: supra, footnote 170 at page 6. [Menkel-Meadow] See also: ibid., at page 912. [Findley]; supra,
footnote 172 at page 702. [Slobogin]; supra, footnote 7. [Australian Law Reform Commission, Discussion
Paper]; and infra. footnote 309. [Australian Law Reform Commission, Issues Paper]
181
Supra, footnote 179 at page 918. [Findley] See also: supra, footnote 170 at page 5. [Menkel-Meadow]
182
M.K. Block, J.S. Parker, O. Vyborna and L. Dusek, “An Experimental Comparison of Adversarial Versus
Inquisitorial Procedural Regimes” 2000 Am Law Econ Rev 2 (1) 170 at page 173.
50
which fact-finding is critical. It is, in my view, convincingly noted in the family law literature
that:
The binary nature of the adversarial system and its particular methods and tactics often
may thwart the goals any legal system
183
…Binary, oppositional presentations of facts in
dispute are not the best way for us to learn the truth; polarized debate distorts the truth,
leaves out important information, simplifies complexity, and obfuscates rather than
clarifies.
184
As Carrie Menkel-Meadow elegantly puts it, in family law “there may be more than just two
sides to every story.”
185
The importance of truth-finding in the application of the best-interests-of-the-child test was noted
by the Ontario Court of Appeal in Clayson-Martin v. Martin.
186
Moreover, the Court suggested
that there is a corresponding effect upon expectations as to judicial conduct:
In this case the trial judge’s primary obligation was to determine the children’s best
interests. In this context, I am particularly reluctant to criticize him for questioning
witnesses in an attempt to get at the truth.
187
Similarly, in Metis Child, Family and Community Services v. A.J.M. et al.,
188
an appeal following
child protection proceedings in which the judge had asked 150 questions of twenty witnesses,
and it was alleged on appeal that sixteen interventions and 117 questions suggested bias, the
Manitoba Court of Appeal held:
Where the welfare of children are concerned, the trial judge may intervene as much as is
necessary in order to clarify the facts, confirm his understanding of expert testimony and
generally make sure his appreciation of the evidence is correct. If necessary, he or she
may intervene to keep the proceedings moving along efficiently. This is true in custody
cases, but even more necessary in child protection cases where the state with all the
183
Supra, footnote 170 at page 5. [Menkel-Meadow]
184
Ibid., at page 6. [Menkel-Meadow]
185
Ibid., at pages 5-6. [Menkel-Meadow]
186
Supra, footnote 171. [Clayson-Martin]
187
Ibid., at para. 109. [Clayson-Martin]
188
Metis Child, Family and Community Services v. A.J.M. et al., 2008 MBCA 30 (CanLII).
51
resources at its disposal is intervening in a substantial way in the relationship between
children and their parents.
189
2.5 Formality
Classically designed courtrooms are immediately distinguishable from rooms with other
functions and have been characterized as having a “paralyzing effect” on all but seasoned
courtroom participants.
190
Even empty, before the arrival of gowned judges, lawyers and court
staff, courtrooms convey a mix of authority, tradition, formality and hierarchy.
American jurist and legal realist scholar Jerome Frank challenged many aspects of traditional
adversarial processes, including sartorial formality.
191
He characterized judicial robes as
“heartless relics of the past,” and “priestly trappings” that create “an air of judicial aristocracy”
and symbolize the notion that “courts must always preserve ancient ways, the past is sacred, and
change impious.”
192
He argued that the effect of robes in particular, and formality in general,
runs deeper than their disquieting effects on the uninitiated. Long before the self-represented
litigant phenomenon, Frank made several observations that now seem prescient: the
administration of justice can be undermined by formality, as witnesses who are merely
uncomfortable may appear to be disingenuous; informality encourages plain speaking, which is
needed to further the progress of law from the “private possession of a professional guild” to
something comprehensible to the “man on the street;” and finally, the need for fear of authority
189
Ibid., at para. 51. [Metis]
190
Linda Mulcahy, “Architects of Justice: The Politics of Courtroom Design” (2007) 13(3) Social & Legal
Studies 383.
191
Supra, footnote 102 at page 254. [Frank, The Cult of the Robe]
192
Ibid., at page 259. [Frank, The Cult of the Robe]
52
is the mark of an “immature society.” It seems important to note Frank’s perspective is not
universally appreciated,
193
and it some research suggests that more respect is accorded to
decisions made in an atmosphere of formality.
194
Studies of courtroom dynamics indicate that aspects of courtroom design, such as sightlines and
proximities among lawyers, judges, jurors and witnesses, affect perceptions of lawyer
competence, and in alternative dispute resolution settings it has been demonstrated that even the
location of tables and chairs can change behavior.
195
For example, a study of the effects of spatial
dynamics upon the effectiveness of mediation processes it was found that some physical settings,
such as a those that allow “cross corner interaction” between parties and a mediator seated at the
same table, tend to bring people together and encourage interaction.
196
These studies suggest that
efforts to adapt courtrooms to therapeutic, less adversarial processes face inherent challenges.
Indeed, the deep significance of structure and symbolism is reflected in courtrooms built in post-
war Germany and post-apartheid South Africa
197
– with glass walls and literally level “playing
fields” to symbolize and promote equality and transparency.
193
Charles Barzun, “Frank and the Modern Mind” (2010), 58 Buff. L. Rev. 1127 at page 1133.
194
Oscar G. Chase and Jonathan Thong, “Judging Judges: The Effect of Courtroom Ceremony on Participant
Evaluation of Process” (2012), 24 Yale J Law Humanit 221. The authors report on the results of their study
and note that research subjects were law students whose perspectives and perceptions may differ from those of
the public at large.
195
Jeffrey S. Wolfe, “Toward a Unified Theory of Courtroom Design Criteria: The Effect of Courtroom
Design on Adversarial Interaction” (1994-1995), 18 Am. J. Trial Advoc. 593 at page 604.
196
Jeffrey S. Wolfe, “The Hidden Parameter: Spatial Dynamics and Alternative Dispute Resolution” (1996-
1997) 12 Ohio St. J. on Disp. Resol. 685 at page 714.
197
Supra, footnote 190. [Mulcahy]
53
2.6 But We Do That Already…
Many reform initiatives are, understandably, ad hoc attempts to address specific
problems with little thought given to the causes of the problem or to the impact of the
proposed "solution" on the system as a whole.
198
In casual discussions of this project, I have been met with the view that the practice of family
law and the attendant court processes have been so extensively reformed that a tribunal model
could not improve upon this new reality. This perspective is addressed below through a brief
review of some of the more important developments in family law dispute resolution in Ontario
and in other jurisdictions.
(a) Less Adversarial Processes
Ontario family court systems have incorporated less adversarial processes with the goal of
making family court processes less damaging to families, and more accessible and for self-
represented litigants,
199
including mandated (albeit limited) judicial assistance for self-
represented litigants and time-limited free mediation services (in some locations, for some
litigants). Some court locations provide information programs and student clinics to assist with
the preparation of documents. The Family Law Rules
200
have been amended to allow judges to
appoint a single expert,
201
and a new summary judgment rule has been implemented
202
with the
goal of promoting proportionality and overcoming the problem of long-standing interim orders
made with limited information. Some of these innovations are relatively new and untested and
may prove to be effective and beneficial.
198
Supra, footnote 87. [Cromwell, Towards a Collaborative]
199
Supra, footnote 88 at page 14. [Ontario Civil Needs Project]
200
Supra, footnote 28 [Family Law Rules]
201
Ibid., Rule 20.1(3) [Family Law Rules] See also Nicholas Bala, “Single Court-Appointed Experts for
Family Cases” Lawyers Weekly, January 21, 2012, Seventh Annual FL Summit Materials, Osgoode Library.
202
Ibid., Rule 16. [Family Law Rules]
54
Despite a lengthy history of reform and further reform proposals, as noted above, the Family
Justice Working Group Report points to an “implementation gap,” which it attributes to lack of
funding and failure of the justice system to completely embrace non-adversarial processes;
indeed, the Report suggests there is “still untapped potential for non-adversarial values and
consensual dispute resolution processes.”
203
The attribution of this implementation gap, in part,
to justice system culture is disturbing given that cultural change within established systems is, as
a matter of common sense, slow.
(b) Changing Roles of Lawyers and Judges
A Law Commission of Ontario study reports that the skills relevant to family law decision-
making include facility with the Family Law Rules,
204
applicable statutes and case law, as well as
an understanding of the relevant social issues, which may include domestic violence, power
dynamics, mental health, and high conflict.
205
The knowledge, skills and training required for
specialized family law judges are considered to reach well beyond traditional judicial roles and
to include effecting “changes in parental behaviours and attitudes.”
206
It has been recommended
that judges undertake training in child development, and lawyers have been encouraged to
become therapeutic actors, in part through multidisciplinary training as part of law school
curricula.
203
Supra, footnote 23 at page 2. [Family Justice Working Group Report]
204
Supra, footnote 28. [Family Law Rules]
205
Law Commission of Ontario, “Voices from a Broken Family Justice System: Sharing Consultations
Results” (September, 2010), online: http://www.lco-cdo.org/en/family-law-process-consultation-results
206
Nicholas Bala, Rachel Birnbaum, Donna Martinson, “One Judge for One Family: Differentiated Case
Management for Families in Continuing Conflict” (2010), 26 Can. J. Fam. L. 395 at page 339.
55
It has further been suggested in family law writing that legal professionals, lawyers and judges
alike, begin to see legal services as part of a larger, “seamless system of social services” for
families, and accept the need to work on an even footing with other professionals.
207
While
family law lawyers have undoubtedly made immense practice changes (anecdotal reports suggest
aggressive strategies are now derided as “old school”) it seems unlikely that the vision of a
seamless system of social services can be realized through reliance upon extra training and the
good intentions of judges and the family law bar.
The American literature describes some judges as “activists” who are energized by new judicial
roles, and others as uncomfortable or openly opposed to change.
208
The Macfarlane study
similarly concludes that judges vary widely in their apparent willingness or ability to adapt to
self-represented parties, and sets out contrasting reports of incivility on the part of some judges,
and ready assistance on the part of others.
209
This “Jekyll and Hyde response” to self-represented
litigants has been attributed to an unsurprising systemic ambivalence to the presence of self-
represented litigants within a system premised upon representation.
210
In the result, the role of
judges is no doubt being shaped by new realities and institutional expectations, but on a highly
individualized basis.
207
Lesley Jacobs, Academic Director, Canadian Forum on Civil Justice, A Multi-disciplinary Approach to
Meeting Family Justice Needs, SLAW, February 13, 2012 Online: http://www.slaw.ca/2012/02/13/a-
multidisciplinary-approach-to-meeting-family-justice-needs/
208
Supra, footnote 175 at page 72. [Hardcastle] Judge Hardcastle of the Family Court of Nevada writes that
there is a battle for the heart of family court, between traditionalists committed to adversarial processes and the
“mighty force” of advocates of therapeutic justice. He argues existing research demonstrates an adversarial
system creates a greater public perception of fairness than an inquisitorial system.
209
Supra, footnote 2. [Macfarlane]
210
Supra, footnote 133. [Thompson, No Lawyer: Institutional Coping]
56
(c) Multi-Disciplinary Decision-Making
Judges with this type of caseload [family law]...need to have access to services such as
family court counsellors, mediators, parenting coordinators, mental health professionals,
and children's lawyers, attached to the court and easily accessible, to facilitate change in
the behaviours and attitudes of parents who are not acting in their children's best
interests...
211
Multidisciplinary input is widely considered desirable for family law cases,
212
especially custody
cases, for the obvious reason that custody cases involve predictions about future outcomes based
upon social, developmental and psychological factors outside the expertise of most judges. This
is consistent with an apparently growing recognition in many fields that decision-making is
becoming more complex and is enhanced by multi-disciplinary perspectives.
213
It must be emphasized that in family law judges are not the problem; it is the ill-fit between
judicial experience and qualifications and the requirements of family law, particularly custody
and access disputes, that is problematic. Not only are judges often underqualified to apply a legal
test requiring a prediction of the future effects of competing parenting plans, sometimes with
insufficient or dubious information,
214
in my view, they are over-qualified to make holiday
access orders.
211
Supra, footnote 206 at page 445. [Bala, Birnbaum, and Martinson]
212
See: Brenda Jacobs and Lesley Jacobs, “Multidisclipinary Paths to Family Justice: Professional Challenges
and Promising Practices” Toronto: Law Commission of Ontario online: http://www.lco-cdo.org/family-law-
process-call-for-papers-jacobs.pdf; see also Ministry of the Attorney General, online:
http://www.attorneygeneral.jus.gov.on.ca/english/news/2010/20101209-family-bg.asp; Law Association of
Ontario, Online: http://www.lco-cdo.org/en/content/family-law-reform; see also: supra, footnote 2
[Macfarlane]; and infra, footnote 340. [Doughty, Identity Crisis]
213
Wendy P. van Ginkel, Daan Van Knippenberg, “Group Leadership and Shared Task Representations in
Decision Making Groups” (2012), Vol 23 (1) Leadership Quarterly 104.
214
Barbara J. Fidler and Rachel Birnbaum, “Child Custody Disputes: Private and Public Assessments” (2006),
25 Can. Fam. L. Q. 137. [Fidler and Birnbaum]
57
Bala and Saunders have observed that there is ongoing controversy in family law about the
appropriate role of expert witnesses.
215
In the family court system, clinical input is primarily
obtained through expert evidence in the form of custody and access assessments,
216
a practice
that has attracted debate on several fronts, including as to judicial over-reliance upon outside
assessments. Judicial comfort in assessments is understandable; as others have observed, courts
are not well-positioned to weigh evidence and custody cases because in general, evidence is
personal, behavioral and difficult to verify, and in particular, parental closeness to a child is
important but difficult to prove.
217
In Canada, judges in family proceedings may appoint a mental health professional to perform an
assessment of the child and parents, and provide a report.
218
Of course, one or both parents may
obtain a private assessment as well. A judge-ordered assessment may be paid for by the parties,
in proportions determined by the court, or a judge may request an assessment through the Office
of the Children’s Lawyer (OCL). The OCL determines whether a particular case warrants its
attention and accepts about fifty percent of requests.
219
Obtaining assessments can be
problematic, as indicated in a 2017 study:
As with many other issues related to the family justice system, some of the most pressing
challenges concerning experts relate to a lack of resources and inadequate access to the
services of qualified mental health professionals for this type of work. Lack of training,
education, and support has resulted into a few professionals who can do this type of
work, and often significant delays in getting access to those who do it.
220
215
Nicholas Bala & Annalise Saunders, "Understanding the Family Context: Why the Law of Expert Evidence
is Different in Family Law Cases" (2003) 20 Can. Fam. L.Q. 277 at page 1. (Westlaw)
216
Nicholas Bala, “Mohan, Assessments & Expert Evidence: Understanding the Family Law Context,
Working Paper No. 07-02” (14 April 2007), Queen's Faculty of Law Legal Studies Research Paper Series.
217
Supra, footnote156 at page 70. [Scott and Emery, Gender Politics]
218
Nicholas Bala, Rachel Birnbaum and Carly Watt, “Addressing Controversies About Experts in Disputes
Over Children” (2017), 30 Can. J. Fam. L. 71 at page 2. (Westlaw)
219
Ibid., at page 81. [Bala et al., Addressing Controversies]
220
Ibid. [Bala et al., Addressing Controversies]
58
This study suggests that reliability is a further problem. Private assessments are performed by a
variety of actors, and social workers, psychologists and psychiatrists use a variety of
methodologies,
221
none of which are standardized.
222
The problem is taken a step further by
concerns about the uneven qualifications of experts hired to critique the reports of other
experts.
223
It should be noted that a research project which examined the consistency between assessment
recommendations and custody decisions in Ontario found a low overall concurrence rate of fifty-
two percent (compared to concurrence rates of over ninety percent in other jurisdictions) variable
depending upon the source of the recommendation. The Ontario data reportedly demonstrated an
overall concurrence rate for OCL social worker custody recommendations of fifty-two percent,
whereas for OCL lawyer recommendations the concurrence rate was eighty-three percent.
224
The
author suggests that this difference may be the result of less judicial deference to social workers
than to lawyers (and to psychologists and psychiatrists, who typically conduct assessments in
other jurisdictions) with the proviso that further research is needed to confirm this conclusion.
225
The difference in overall Ontario and international concurrence rates is attributed to delays in the
Ontario family court system which result in “stale” assessments that are of little use in judicial
decision-making.
226
221
Nicholas Bala, “Bringing Canada’a Divorce Act into the New Millennium: Enacting a Child-Focussed
Parenting Law” (2014-2015) 40 Queens L.J. 425.
222
Daniel W. Shuman, “The Role of Mental Health Experts in Custody Decisions: Science, Psychological
Tests, and Clinical Judgment” (2002-2003) 36 Fam. L.Q. 135.
223
Supra, footnote 218. [Bala et al., Addressing Controversies]
224
Noel Semple, “The Eye of the Beholder: Professional Opinions About the Best Interests of a Child” (2009),
49 (4) Fam. Ct. Rev. 760.
225
Ibid., at pages 766-767. [Semple, Eye of the Beholder]
226
Ibid., at pages 767-768. [Semple, Eye of the Beholder] The author reports an average of 1.08 years from the
date of OCL recommendations and the date of decision, and an average of 0.9 years in cases where the
recommendation was accepted, compared to 1.22 years in cases in which the recommendation was rejected.
59
The most common complaint among judges about expert witnesses is a tendency among
assessors to abandon neutrality and become advocates for one side.
227
The law of evidence
requires that expert evidence which suggests an opinion regarding an “ultimate issue” be subject
to special scrutiny as to its admissibility;
228
the reported tendency on the part of assessors to
become “hired guns”
229
suggests it is essential that assessments be subject to informed scrutiny.
Accountability is a further problem; despite that experts are not permitted to offer an opinion on
the ultimate issue; in cases where judges over-value assessments, they may effectively transfer
decision-making authority to social workers and mediators.
230
Indeed, over-reliance on
assessments has been characterized as “almost as a form of delegated fact finding on behalf of
the court,” essentially introducing an “inquisitorial element” into family law court
proceedings.
231
Finally, statutes containing criteria for the application of the best-interests-of-the-
child test (which lend at least minimal structure to the test) do not apply to recommendations
made in custody assessments, for which the sole criterion is the broad best-interests-of-the-child
concept.
232
Custody and access assessments create dual problems of cost and delay. The cost of an
assessment was recently reported as typically ranging from $5,000 to $10,000, at minimum, and
227
Supra, footnote 172 at page 707. [Slobogin]
228
Supra, footnote 218 at page 2. (Westlaw). [Bala et al., Addressing Controversies]
229
Ibid., at page 2. (Westlaw) [Bala et al., Addressing Controversies]
230
Martha Albertson Fineman, “Dominant Discourse, Professional Language, and Legal Change in Child
Custody Decisionmaking” (1988), 101 Harv. L. Rev. 727 at page 738.
231
D.A. Rollie Thompson, “Are There Any Rules of Evidence in Family Law?” (2006), 21 Can. Fam. L. Q.
245.
232
Supra, footnote 214 at page 138. [Fidler and Birnbaum]
60
assessments can take months to complete,
233
delaying the resolution of cases involving children,
“who experience added stress as their cases are prolonged.”
234
Should a judge wish to rely upon information outside an assessment or other party-produced
evidence, there is the problem of judicial notice. Bala and Saunders explain that self-directed
judicial education can be useful, but is problematic; that is, although there is thought to be more
scope for the admission of independent judicial research on “social framework facts” in family
law cases, this practice has been accepted as a ground of appeal.
235
They write that while judicial
education programs offer programs on “social context” issues, (such as child development and
family dynamics) judges should be cautious about using this knowledge as the information
conveyed in judicial training programs is general in nature and may not easily be applied in
specific cases, or may represent only one of any number of credible perspectives and it may be
difficult for a judge to assess its reliability.
236
They further note that if counsel provides social
science literature, and opposing counsel objects, this material should not be received by the
court.
237
These limitations seem significant given that psychological and social science literature
can be highly relevant to custody decision-making; indeed, it has been noted that assessment
recommendations are often more highly dependent upon social science literature than the results
of child-specific testing.
238
233
Supra, footnote 218. [Bala et al., Addressing Controversies]
234
Ibid., at page 95. [Bala et al., Addressing Controversies]
235
Supra, footnote 215. [Bala and Saunders]
236
Ibid., at pages 2-3. (Westlaw) [Bala and Saunders]
237
Ibid., at page 3. (Westlaw) [Bala and Saunders]
238
Supra, footnote 218. [Bala et al., Addressing Controversies]
61
The importance of clinical input in family law dispute resolution is illustrated by a recent
initiative aimed at identifying high conflict family cases and isolating them for special treatment
within the Ottawa family court system, through an experimental multi-disciplinary model. The
goals of the Ottawa Coordinated Case Management Project for High Conflict Custody and
Access Cases (“CCMP”) are taken from the report of Action Committee on Access to Justice in
Civil and Family Matters,
239
and include reducing family conflict and improving communication
through early connection between families and “appropriate multidisciplinary family services,”
and coordinating and integrating the delivery these services. The CCMP was implemented for a
small number of cases in 2011 and expanded in 2015.
240
A 2017 review of the CCMP concludes that the project was useful in cementing the goal of a
community-based approach to high conflict family law. It also notes that cases took longer to
resolve in the CCMP model than in a control group, which was attributed to these cases
receiving more attention, and the wait lists attached to some services to which families were
referred. Feedback from participating families was reportedly sparse; the two parents who
responded noted “no difference in the CCMP model” and complained about a lack of follow up.
Among lawyers it was remarked that the CCMP revealed unmet needs, including: a need for
more judges with experience in case management and in working with high conflict families; a
need for more communication and collaboration between the Project’s “service advisory
committee” and lawyers and judges; a need for a project manager to oversee and monitor the
overall CCMP; and a need for more follow-up with parents and lawyers after service advisory
suggestions are made. It was further noted that the cost of the project appeared to raise questions
239
Supra, footnote 102. [Roadmap for Change]
240
Supra, footnote 116. [Birnbaum et al., Ottawa Coordinated Case Management]
62
about its sustainability.
241
Participating judges noted that parents lacked financial resources to
pay for such services, but unanimously supported intensive case management approach for high
conflict families. Most interesting from the perspective of this project, the authors conclude that
the study demonstrated a need for “a more integrated collaborative approach,”
242
that is, social
services working alongside lawyers and courts.
(d) Information and Triage
Some information services are intended to operate as a self-help tool; it has been argued that
government sponsored information is generally of limited utility to those subject to other barriers
to justice, such as lack of education, trauma, language problems, isolation or disability.
243
The
argument is that self-help should not be a policy foisted upon individuals who already face
disadvantages in daily life,
244
and moreover, government support for the self-help ethic may lead
to unwarranted assumptions on the part of self-represented parties as to the level of litigation
preparation that may be accomplished by reading brochures.
245
In other words, although
information services are an important component of access to justice, they may be seen as
substituting information for meaningful assistance.
246
For example, a connection has been
241
Ibid., at page 11. [Birnbaum et al., Ottawa Coordinated Case Management]
242
Ibid., at page 12. [Birnbaum et al., Ottawa Coordinated Case Management]
243
Community Legal Education Ontario, “Final Report: Tapping the Community Voice: Looking at Family
Law Self-Help through an Access to Justice Lens: Themes and Recommended Next Steps” (2008) online:
http://www.cleo.on.ca/_oldweb/english/pub/onpub/PDF/boardmanual/thinktankreport.pdf at page 9.
244
Supra, footnote 91. [Minow]
245
Lorne D. Bertrand, Joanne J. Paetsch, Nicholas Bala, Rachel Birnbaum, Self-Represented Litigants In
Family Law Disputes: Views Of Alberta Lawyers, Canadian Research Institute for Law and the Family,
December 2012 Online: http://celarc.ca.ezproxy.library.yorku.ca/cppc/236/236413. pdf
246
Julie Doughty and Mervyn Merch, “Judicial Independence and the Restructuring of Family Courts and
Their Support Services” (2012), 24 Child & Fam. L. Q. 333 at page 343.
63
claimed between the “gutting” of legal aid in British Columbia and the proliferation of
government sponsored self-help information.
247
Other information services are designed to explain court process and alternative options; for
example, the Ontario Mandatory Information Program (MIP), which does not act as a self-help
tool, but rather explains court and alternative dispute resolution processes with the intent of
“informing parents of current understandings about the risks involved in exposing children to
conflict and protracted litigation, and encouraging them to exhibit behaviours and make legal
decisions in child-related matters that take their children's needs into account...”
248
The Parent
Information Program, which operated in Ontario until September 1, 2011, when it was replaced
with the MIP, was reviewed in a recent study, which found the program was rated as “very
helpful” by a large majority of respondents along dimensions such as improving understanding
of legal processes and the availability of alternatives. Six-month follow-up surveys
demonstrated a continuing statistically significant effect upon knowledge, attitudes and
parenting behaviour.
249
A recently expanded network of Family Law Information Centres provides written information
as well as interactive “information about separation and divorce and related family law issues,
family justice services, alternative forms of dispute resolution, local community resources and
247
Supra, footnote 243 at page 3. [Community Legal Education Ontario, Themes and Recommended Next
Steps]
248
Ministry of the Attorney General, online:
http://www.attorneygeneral.jus.gov.on.ca/english/family/family_justice_services.asp#mip
249
Shelley M. Kierstead, Parent Education Programs in Family Court, Balancing Autonomy and State
Intervention, (2011) 49 Fam Ct Rev 140.
64
court processes.”
250
At designated times, Information and Referral Coordinators are available to
make referrals and assist self-represented litigants to understand their needs.
Although it may be a question of semantics, Ontario family court systems appear to contain
elements of both “tiered” and “triage” approaches. As in tiered systems, legal and parenting
information is provided, usually without professional assistance, as a preliminary step to
encourage settlement, and if settlement does not ensue the parties may attempt mediation in
which a custody and access assessment may be recommended; failing settlement, a court
application may be filed, which leads to a multi-layer conference process, and may also result in
a referral to the Office of the Children’s Lawyer; if the case is not settled through the conference
process, a trial is scheduled.
251
The alternative to a tiered system is a “triage” approach, in which
cases are assessed early on to identify the issues in dispute and the level of conflict, and the
parties are swiftly engaged with service providers most likely to lead the parties to settlement.
252
A triage process has been characterized as an alternative to both a tiered approach and a
mandatory mediation model in which mediators perform a triage function by screening out cases
inappropriate for mediation.
253
Elaborate triage systems reportedly involve trained court staff
interviews of all family litigants at the time of filing a court application, with referrals to the
most appropriate government or subsidized program, which may include mediation, counseling,
250
Ontario Ministry of the Attorney General, Family Law Information Centres, online:
https://www.attorneygeneral.jus.gov.on.ca/english/family/infoctr.php
251
Supra, footnote 206 at page 441. [Bala, Birnbaum, and Martinson]
252
Ibid., [Bala, Birnbaum, and Martinson]
253
Peter Salem, “The Emergence of Triage and Family Court Services: The Beginning of the End for
Mandatory Mediation?” (2009) 47 (3) Fam, Ct. Rev. 371; and Hugh McIsaac, “A Response to Peter Salem’s
Article “The Emergence of Triage and Family Court Services: The Beginning of the End for Mandatory
Mediation?”” (2010) 48 (1) Fam. Ct. Rev. 190.
65
or custody assessment, as part of a comprehensive gatekeeping function designed to optimize the
use of publicly funded services.
254
As noted, this may be the role of Family Law Information
Centres, although not all services associated with triage systems appear to be publicly funded or
subsidized in Ontario.
In Ontario, various forms of “informal” triage operate: the Office of the Children’s Lawyer
performs a “limited form of triage” by deciding which cases to accept and whether they warrant
clinical investigation, child representation, or both; mediators are expected to perform a “limited
gate keeping function” by identifying cases for which mediation is not appropriate; family
lawyers in private practice may engage in “a kind of triage” by identifying cases that are suitable
for collaborative processes and those that should commence with a court application; and
Ontario judges perform “informal triage” in case conferences and interim motions by
encouraging mediation of appropriate cases, suggesting the involvement of an assessor or a
referral to the Ontario Office of the children’s lawyer. Bala notes that this function is undertaken
with limited information and depends upon the initiative of individual judges. In addition to the
foregoing, Information and Referral Coordinators provide procedural and substantive legal
information, referrals and limited assistance with forms. Bala has characterized Information and
Referral Coordinators (as of 2012) as performing a voluntary form of triage, and suggests that
due to inadequate training and resources, use of these services should not be mandatory.
255
There are arguments for and against all of these approaches; for example, triage may be seen as
an additional bureaucratic layer, whereas mandatory mediation immediately engages the parties
254
Supra, footnote 9, at pages 285-286. [Bala, Reforming Family Dispute Resolution]
255
Supra, footnote 9, at pages 285-286. [Bala, Reforming Family Dispute Resolution]
66
in settlement efforts, but may not be suitable or worthwhile in all cases.
256
There seems to be
increasing emphasis upon the benefits of triage; Saini, Birnbaum and Bala’s 2016 research on
court-related services in Ontario indicates that existing information and referral services are
“provided by non-lawyers and do not formally triage cases,”
257
and suggests a need for a better
triage system “to identify and direct cases to the type of service and program that matches the
different levels of conflict.”
(e) Legal Advice: Duty Counsel (Provincial Courts)
Recent research has reported that assistance from court adjunct counsel sometimes leaves self-
represented parties “more confused, and even panicked, than before,” due to short and
sometimes hurried sessions, and has recommended a re-assessment of summary advice
services.
258
The concern noted above with respect to some information services applies here,
too; investing in self-help tools that provide inadequate assistance to those who most need help
risks diverting resources away from other initiatives which might increase meaningful access to
justice.
259
In Ontario Provincial Courts “duty counsel” and “advice counsel” are funded by Legal Aid
Ontario and available onsite to meet with family law litigants.
260
In brief informal interviews
with Provincial Court duty counsel lawyers, it was explained that on a busy day, onsite lawyers
256
See: supra, footnote 253. [Salem; McIsaac]
257
Supra., footnote 113 at page 37. [Saini, Birnbaum and Bala]
258
Supra, footnote 2. [Macfarlane]
259
Supra, footnote 243. [Community Legal Education Ontario, Themes and Recommended Next Steps]
260
It was explained by a duty counsel and advice counsel lawyers at a provincial court location that duty
counsel advises parties with court appearances scheduled for the same day, whereas advice counsel deals with
those with future court appearances.
67
meet with as many twenty clients, allocating about twenty minutes to each. Litigants rarely see
the same lawyer more than once; the point is to provide basic summary advice and, very rarely,
to appear in court. There are income eligibility criteria, but they are not the same as for a legal
aid certificate, and there is no requirement to provide proof of income or assets. Duty and advice
counsel do not assist with forms; this is the role of students at Family Law Information Centres,
and Provincial Court litigants who require this sort of assistance are referred to a Superior Court
Family Law Information Centre.
(f) Case Management
The Ontario Family Law Rules
261
have established a specialized case management system for
family law intended to smooth the litigation process and facilitate settlement. Some form of case
management is seemingly an essential component of dispute resolution systems. It has been
observed that the conference process is not uniformly understood by self-represented family law
litigants,
262
and lack of preparation can make conferences unproductive.
263
For cases unlikely to
settle, multiple pre-trial processes likely exacerbate conflict, as each step requires the parties to
literally re-invest in their respective positions. For cases that are capable of settlement, it is far
not clear that judicial conferences are consistently or ideally suited to pursuing that goal.
Moreover, extreme cases may reportedly involve pre-trial conferences and hearings before five
to ten different judges over a period of years, during which uncertainty endures and the needs of
the family continually change.
264
261
Supra, footnote 28. [Family Law Rules]
262
See: Nancy Ver Steegh, “Family Court Reform and ADR: Shifting Values and Expectations Transform the
Divorce Process” (2008), 42 Fam. L.Q. 659.
263
D.A. Rollie Thompson, “The Evolution of Modern Canadian Family Law” (2003), 41 Fam. Court Rev.155.
264
Supra, footnote 206 at page 402. [Bala, Birnbaum, and Martinson]
68
Refined case management systems are frequently at the centre of family law reform proposals.
Justice Landerkin’s proposal referred to earlier suggests a one-family, one-judge approach
combined with a modified three-stage case management system in which a single judge meets
with the parties to gather information, after which the same judge conducts mediation; if parties
do not reach an agreement, mediation is followed by an informal “mini-trial” which may proceed
with adjournments and consent orders; at the conclusion of the mini-trial a non-binding decision
is delivered, which if not acceptable to the parties, is followed by a full trial before a different
judge.
265
Bala, Birnbaum and Martinson have proposed a system of “differentiated” case
management,
266
whereby judicial roles vary in the course of the case management process,
depending upon the requirements of each case.
267
(g) Counselling
The British Columbia Family Law Act
268
allows judges to order counselling, and in the
Australian Less Adversarial Trial system the court may order an investigation by a mental health
consultant. In Ontario, judicial opinion is reportedly divided over the power of courts to order
counselling,
269
suggesting there is no clear legislative or common law basis upon which courts
can rely.
265
Supra, footnote 36. [Landerkin]
266
Supra, footnote 206. [Bala, Birnbaum, and Martinson]
267
Ibid., at page 409. [Bala, Birnbaum, and Martinson]
268
Supra, footnote 13. [B.C. Family Law Act]
269
Shelley Kierstead, “Therapeutic Jurisprudence and Child Protection” (2011-2012), 17 Barry L. Rev. 31 at
page 44.
69
In Toronto there are some subsidized counselling services, such as Families in Transition, a
social service agency affiliated with the United Way that charges fees on a sliding scale based
upon income, and typically has a wait list of several months. The potential to combine
counselling and adjudication services in court systems obviously exists, as illustrated by the
report on the CCMP and the study of the Toronto IDVC referred to earlier; its efficacy seems to
be a question of funding and degree of integration, or at minimum, co-ordination.
(h) Alternative Dispute Resolution
(i) Settlement
In many jurisdictions around the world, a very high percentage of cases settle in all areas of the
law; indeed, a 2012 HiiL Report asserts that on a worldwide basis judges in official courts now
primarily supervise the settlement process.
270
In the United States the overall rate of settlement
for civil litigation cases has been estimated at ninety-eight percent.
271
The Law Commission of
Ontario reports that that the proportion of family law cases that result in judicial decision-making
of any kind is in the minority, and only two to five percent of cases proceed to trial.
272
It has been suggested that high settlement rates, combined with generally declining levels of
conflict following separation, indicate that existing family law systems work “reasonably well”
for the majority of separating families.
273
In my view, the fact that settlement is ultimately
270
HiiL Trend Report/Summary, “Towards Basic Justice Care for Everyone, Challenges and Promising
Approaches” (2012) online:
http://www.hiil.org/data/sitemanagement/media/TrendReport_BasicJusticeCare_Executive_Summary_030412.
pdf
271
Susan Daicoff, “The Future of the Legal Profession” (2011), 37 Monash U. L. Rev. 7.
272
Supra, footnote 3. [Law Commission of Ontario, Towards a More Efficient…]
273
Supra, footnote 9 at page 277-278. [Bala, Reforming Family Dispute Resolution]
70
reached is not a reliable indicator of the effectiveness of existing processes. Cases that eventually
settle may first proceed some distance through the court system, and profound costs (of every
kind) may have been incurred in settlements reached on the courthouse steps.
274
The term “settlement mission” refers to the pressure to settle that is now exerted at every stage of
the family dispute resolution process by lawyers, judges, dispute resolution officers, mediators
and others.
275
A recent international family law conference reported that pressure to settle is felt
by both parties and mediators in court-adjunct family mediation, and recommended policies be
adopted to counteract this pressure by encouraging mediators not to “over-aggressively push for
settlement where settlement is neither appropriate nor desired by the parties.”
276
Others have
noted the effects of pre-trial processes on settlement pressure, including judges sometimes
pushing for settlement to the point of acting as “coercive mediators.”
277
As noted above, in my view, the policy rationale for resolving family law disputes through the
court system in an era that not only prefers settlement, but discourages the use of courts, is
unclear. The obvious answer is that courts are a fallback mechanism for the enforcement of legal
entitlements, the structure that casts the “shadow of the law.” However, it is explicit in Mnookin
and Kornhauser’s analytical framework that the shadow of the law is only effective if it is clear
and well-defined, and its source accessible. In family law cases settlement is encouraged for all
the standard reasons: efficiency, cost, superior outcomes, better “buy-in;” however, settlement is
274
Supra, footnote 104. [Brownstone]
275
Noel Semple, “Mandatory Family Mediation and the Settlement Mission: A Feminist Critique” (2012), 24
Can. J. Women & L. 207.
276
Yishai Boyarin, “Court-Connected ADR – A Time of Crisis, a Time of Change” (2011-2012), 95 Marq. L.
Rev. 993.
277
Supra, footnote 17 at page 1166. [Macaulay]
71
also encouraged because of the well-known potential, as noted above, for family trials to
permanently rupture ongoing family relationships to the detriment of children. In 2006, Rollie
Thompson recounted that, “for middle class people, family litigation has been described as “a
catastrophic experience – expensive, painful, requiring extraordinary financial arrangements with
lenders or lawyers, and to be avoided whenever possible.”
278
The recent family law research and literature discussed in this chapter does not appear to have
been eclipsed by reform. In my view, to the extent that trials are portrayed as a disastrous
outcome in and of themselves, an “avoidance imperative” is created: a “process effect” that has
negative implications for access to justice, both in terms of access to authoritative adjudication
and access to a fair negotiating environment. The result of valorizing settlement while
adjudication is problematized is, in my view, to problematize both.
It must be noted that others have rejected the argument that encouragement of settlement by
court systems is “ineffectual or inappropriate;”
279
however, I argue here that judicial systems
ought not to encourage settlement without also facilitating good settlements. In the Ontario court
system, good settlements may be impeded by relatively short onsite mediation that may be
ineffectual or perceived as coercive; reliance upon judge-led case conferences, which are a sub-
optimal settlement mechanism; and a trial process that the system itself acknowledges is
damaging and which “good parents” avoid.
278
D. A. Rollie Thompson, “The Judge as Counsel, Canadian Forum on Civil Justice” (Spring 2005) online:
http://cfcj-fcjc.org/sites/default/files/docs/2006/thompson-en.pdf
279
Supra, at footnote 150 at page 302. [Semple, Judicial Settlement Seeking]
72
The overwhelming institutionalized preference for settlement within family court systems has, in
my view, made the well-known, indeed seminal, work of Owen Fiss and Mnooken and
Kornhauser newly compelling. Fiss’ controversial piece Against Settlement,
280
which is echoed
in feminist literature,
281
argues against the assumption that all settlements are good settlements,
in part because of inequities inherent in the bargaining environment. Written in 1983, when the
popularity of Alternative Dispute Resolution was growing rapidly, Fiss expressed the unpopular
view that power imbalances (more subtle than those that would currently disqualify a family
from mediation) are problematic for the integrity of private negotiations. He wrote:
The disparities in resources between the parties can influence the settlement in three
ways. First, “the poorer party may be less able to amass and analyze the information
needed to predict the outcome of the litigation, and thus be disadvantaged in the
bargaining process.” Second, he may need the damages he seeks immediately and thus be
induced to settle as a way of accelerating payment, even though he realizes he would get
less now than he might if he awaited judgment. All plaintiffs want their damages
immediately, but an indigent plaintiff may be exploited by a rich defendant because his
need is so great that the defendant can force him to accept a sum that is less than the
ordinary present value of the judgment. Third, the poorer party might be forced to settle
because he does not have the resources to finance the litigation, to cover either his own
projected expenses, such as his lawyer's time, or the expenses his opponent can impose
through the manipulation of procedural mechanisms such as discovery. It might seem that
settlement benefits the plaintiff by allowing him to avoid the costs of litigation, but this is
not so. The defendant can anticipate the plaintiff's costs if the case were to be tried fully
and decrease his offer by that amount. The indigent plaintiff is a victim of the costs of
litigation even if he settles.
282
280
Owen Fiss, “Against Settlement” (1983-1984), 93 Yale L.J. 1090.
281
Janet Rifkin, “Mediation from a Feminist Perspective: Promise and Problems” (1984), 2 Law & Ineq. 21 at
page 26. The author argues that to the extent that mediator neutrality masks an “objectivist” (reasonable man)
paradigm of law, it further institutionalizes male power.
282
Supra, footnote 280 at page 1076. [Fiss]
73
Published 1984, “Against Settlement” is a foundational piece in alternative dispute resolution
literature, and continues to engender discussion and debate.
283
Its central theme is that private
bargaining permits disputes to be resolved according to personal preferences, rather than law and
legal principles, which may erode public values, that is, moral ideals about justice, rights and
social cohesion, and permit individual interests to replace redistributive justice.
284
A number of
interpretations of the piece were presented in a 2009 symposium titled “Against Settlement
Twenty-Five Years Later,” including one in which “Against Settlement” is interpreted as a
warning that subordinating judicial adjudication to alternative dispute resolution may lead to a
social, political and cultural drift toward neoliberalism, away from state responsibility for social
well-being.
285
It is generally accepted that the state has an interest in protecting “vulnerable” members of
society,
286
but how this should be reflected in accessible adjudication is far from clear; indeed, it
has been argued that the promotion of non-subsidized mediation contributes to the privatization
of dispute resolution and may weaken the public perception of dispute resolution as a
fundamental state responsibility.
287
Differing perspectives on the need for accessible adjudication
in family law are illustrated in the following judicial commentary:
One view is that while alternative dispute resolution should be readily available, this must
not be provided instead of courts, which should remain at the center of family law. This is
because alternative dispute resolution operates in the shadow of the law. That is to say
that alternative dispute resolution is influenced by family law statutes and leading cases
283
See: Howard M. Erichson, “Foreword: Reflections on the Adjudication-Settlement Divide Symposium –
Against Settlement Twenty-Five Years Later” 78(3) Fordham L. Rev. 1143 at page 1117.
284
Amy Cohen, “Revisiting Against Settlement: Some Reflections on Dispute Resolution and Public Values”
(2009) 78(3) Fordham L. Rev. 1143 at page 1144. [Cohen]
285
Supra, footnote 289 at page 1148. [Cohen]
286
Hon. Peter Boshier, Hon. Judith Kreeger, Hon. George Czutrin, and Julia Spelman, “The Role of The State
in Family Law” (2013) 51 (2) Fam. Ct. Rev. 184 at page 187.
287
Supra, footnote 91. [Minow, Lawyering for Human Dignity]
74
and the courts play a pivotal role and interpreting the law and providing a forum whose
decisions are disseminated publicly. This is vital for the evolution of the law.
Additionally, courts serve to protect rights of the vulnerable, offer resolution where the
alternative dispute resolution fails, and provides for parties who seek enforcement or
wish to appeal the outcome of an alternative dispute resolution process… a family law
system must be designed so that it is accessible for all who need it.
288
[Emphasis added]
In the 2016 study of parents’ experiences of family litigation referred to earlier, the authors note
that government has an important role to play in providing services to separated parents, and that
further research is required to guide them in this regard.
289
Government responsibility for access
to justice in a “substantive equality” sense is implicit in vulnerability theory, and also resonates
with observations made in law and economics literature that, “access to justice must be situated
in the context of social and economic redistribution,” and “only the political branches of
government can advance the unfinished access to justice agenda.”
290
It is troubling that criticism of the family courts is often addressed primarily by referring to the
benefits and accessibility of non-court processes. An excerpt from of online discourse illustrates
this point. In 2017, two mediators associated with “Family Dispute Resolution of Ontario,” a
well-known Toronto mediation firm, posted a response to a series of Christie Blatchford’s then-
recent National Post columns, which, they describe as being about “those feeling unfairly treated
by the family courts,” portraying “indifferent judges, biased laws and tragic endings,” and
concluding that “the family law system is broken.” The mediators’ response to Blatchford was,
in part, as follows:
But the real story is this. The vast majority of separating Canadians resolve their family
law disputes peacefully, affordably, and in a way that allows their children to live happy
288
Supra, footnote 286 at page 189. [Boshier et al.]
289
Supra., footnote 113 at pages 24-25. [Saini, Birnbaum and Bala]
290
Supra, footnote 16. [Roach and Sossin]
75
and healthy lives. Not as interesting as Blatchford’s stories, but the family law system is
not as broken as you might think.
We know this because we are among the hundreds of skilled, affordable family dispute
resolution professionals who resolve these cases every day. Some of us do it as family
mediators working in the courts Blatchford describes, where hundreds of cases are settled
each year with free and subsidized mediation, available to virtually every separating
couple in the province. Others of us do it as privately hired mediators, arbitrators and
collaborative professionals…
Significant progress is happening. Family Law Information Centres in family courts have
Information & Referral Coordinators who, for free, provide a vast array of support and
information for separating couples. Free and subsidized family mediation programs
across the province are universally rated very highly. Counselling, legal advice and
supports for victims of violence are now available through the Family Court Support
Worker program.
The number of “self-reps” in family court (over 70% in some) is a significant problem.
Judges spend too much time explaining procedure to unrepresented parties, leaving
insufficient time to deal with trials, motions and case conferences. But here too, there is
progress.
The recommendations of the Bonkalo Report (to expand the use of family law paralegals)
may assist those who cannot afford lawyers to be better prepared and to understand the
court process. Legal Aid Ontario has introduced Certificates specifically for those in
mediation— meeting a real need. But income thresholds are still too low and funding
continues to fail to meet demand.
There are real challenges and we cannot stop seeking answers. But there is also a lot that
is working well and getting better. Blatchford’s stories are important to hear and more
important to be placed into context.
291
Despite that this was written by stakeholders, it is illustrative of a mindset in which progress in
alternative dispute resolution is equated to progress in family law dispute resolution in total. As
noted above, the point made in the Australian Law Reform Commission Discussion Paper – that
developments in alternative dispute resolution do not help families who need an adjudication
process – is, in my view, compelling.
292
While only a small percentage of cases fall into the
291
Lorne Wilson and Hilary Linton, “The Family Court “Crisis” And Why Dispute Resolution Matters”
(Family Dispute Resolution of Ontario, May 5, 2017)
292
Supra, footnote 7 at page 138. [Australian Law Reform Commission, Discussion Paper]
76
category of those that “cannot or should not settle,” if one accepts that an accessible alternative
to settlement would improve the negotiating environment, benefits would be conferred upon
parties whose cases can and do settle. Moreover, if one accepts that the consequences for
children of adversarial family litigation are a matter of public interest, the percentage of cases in
which this interest is engaged no longer seems legitimately determinative.
The deterrence of trials by court systems is not unique to family law cases; it has been argued
that the real function of all civil trials is no longer dispute resolution, but the deterrence of
trials,
293
and the resulting emphasis on alternative processes has been described as “negotiated
process rationality.”
294
Again, I suggest that family law is different; a court system that promotes
alternative dispute resolution as the only rational choice because of the system’s own negative
effects seems less like “negotiated process rationality” than abandoning a vulnerable population
to a sub-optimal settlement environment. As Mnookin and Kornhauser have pointed out, if the
role of the legal system is to emphasize settlement, “the inadequacies of our current system are
readily apparent.”
295
(ii) Mediation
In the UK, at least ten American states, and now British Columbia, attendance at an informal
mediation or assessment session is mandatory before a family law court application involving
children may be commenced.
296
293
Supra, footnote 55. [Macaulay]
294
Ibid., at page 1168. [Macaulay]
295
Supra, footnote 147 at page 996. [Mnookin and Kornhauser]
296
See: supra, footnote 246 at page 341. [Doughty and Merch]; supra, footnote 121. [Applegate and Beck];
Lord Neuberger Of Abbotsbury, Has Mediation Had Its Day? The Gordon Slynn Memorial Lecture,
77
The two paradigmatic styles of mediation are “facilitative” and “evaluative.” Roughly speaking,
the former, sometimes called “interest-based,” focusses upon identifying needs and interests,
assessing options, and encouraging the parties to resolve the dispute as independently as
possible. Highly interest-based mediation is described as including: no consideration of legal
entitlements but ensuring that both parties “feel heard,” encouraging parties to “work out their
problems in a spirit of compromise;
297
and, providing a cathartic forum for discussion,
regardless of outcome.
298
Facilitative mediation has been characterized as well-suited to custody
and access disputes as it is more future-oriented, and more likely to improve, or at least not
further damage, the ongoing parental relationship.
299
It has been suggested that judges are not
ideally suited to act as facilitative mediators, given that it is at odds with their training and judges
are expensive resource.
300
Evaluative mediation is more “rights-based” and examines the
strengths and weaknesses of legal positions and forecasts litigation outcomes.
301
It is the style of
mediation typically adopted by judges in the Ontario case conferencing process,
302
and is thought
to be less likely to foster joint problem solving, both in the course of mediation and between the
parties, following settlement.
303
There are, of course, any number of mediation styles that
combine elements of both, and mediators within the same system may interpret their roles very
November 2010, Online, http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/moj-speech-
mediation-lectureA.pdf at page 8.
297
Supra, footnote 223 at pages 25-27. [Rifkin]
298
Richard Delgado, “The Unbearable Lightness of Alternative Dispute Resolution: Critical Thoughts on
Fairness and Formality” (2017), 70 S.M.U.L. Rev. 611 at pages 622-624.
299
Supra, footnote 150 at page 323. [Semple, Judicial Settlement Seeking]
300
Supra, footnote 40 at page 14. [Semple and Bala, Reforming the Family Justice System]
301
Supra, footnote 121. [Applegate and Beck]
302
Supra, footnote 40 at page 27. [Semple and Bala, Reforming the Family Justice System]
303
Ibid., at page 29. [Semple and Bala, Reforming the Family Justice System]
78
differently and conduct very different processes. It is not surprising that “resource intensive”
mediation is considered most effective in family law cases.
304
Ontario’s court-integrated mediation program, implemented as part of the Four Pillars reforms,
provides two hours of free onsite mediation to parties referred to mediation by a judge or Dispute
Resolution Officer, which may be followed by eight hours of subsidized offsite private
mediation, with fees set on a sliding scale based upon income. Commentary on the onsite
mediation program has noted some concerns, including the relatively short initial time allotment,
and the lack of any mechanism to ensure that parties have prior legal advice.
305
According to interviews with court staff in Toronto, most clients of court-adjunct mediation
services are self-represented. The percentage was estimated at about eighty percent, and while
mediators may suggest parties obtain legal advice in advance of mediation, there is no
requirement to do so. In Toronto, court-adjunct mediation is available at the Superior Court only;
there is no onsite mediation at the Provincial Court level. There is reportedly no uniformity in
mediation styles or the manner in which self-represented litigants are informed (or not) of legal
entitlements in the course of on-site mediation. Mediators in court-adjunct mediation have
various types of training including in law and social work; depending upon availability, social
workers are reportedly the preferred mediators for custody disputes.
304
Supra, footnote 9 at page 287. [Bala, Reforming Family Dispute Resolution] See also: Sandra J. Perry,
Tanya M. Marcum, Charles R. Stoner, “Stumbling down the Courthouse Steps: Mediators' Perceptions of the
Stumbling Blocks to Successful Mandated Mediation in Child Custody and Visitation” (2010-2011), 11 Pepp.
Disp. Resol. L.J. 441.
305
Lene Madsen, “Family Mediation Policy and Practice: Overview of Ontario’s New Family Mediation
Initiative – Part One” (2013), 32 Can. Fam. L. Q. 193 at page 194.
79
It has been maintained in the literature that efforts to achieve settlement should be pursued
through processes, and by individuals, most likely to achieve this result; that is, for custody
cases, through facilitative mediation by non-judges.
306
I would extend this argument to every
stage of the dispute resolution process, including adjudication; that is, all dispute resolution
processes ought to be conducted by the most qualified professionals.
2.8 Innovative Court Models and Systems
(a) Problem-Solving Courts
Two waves of change have been identified in the evolution of Anglo-American legal processes;
the first aimed at improving efficiency by creating specialized rules and case conference
processes (as occurred in Ontario with the enactment of the Family Law Rules
307
) and the second
aimed at developing a problem-solving approach for categories of cases marginalized within the
court system.
308
A problem-solving approach attempts to address the behavioral problems and
risks that underlie a dispute, with the goal of achieving a more sustainable resolution. It connects
parties to relevant support services and may involve judicial oversight of progress with respect to
desired behavioral change, through “part-heard proceedings.”
309
The Australian Law Reform
Commission Discussion Paper describes a problem-solving approach as follows:
Problem-oriented courts attempt to facilitate a team approach and encourage close
collaboration between agencies involved in the justice process. The problem-oriented
court acts as the ‘hub’ connecting various ‘spokes’, such as drug and alcohol treatment
306
Noel Semple, “A Third Revolution in Family Dispute resolution: Accessible Legal Professionalism” (2017)
34 Windsor Y.B. Access to Just. 130 at page 146.
307
Supra, footnote 28. [Family Law Rules]
308
David B. Rottman, “Does Effective Therapeutic Jurisprudence Require Specialized Courts (and Do
Specialized Courts Imply Specialist Judges)?” (2000), 37 Amer. Judges Ass'n. Ct. Rev. 22, 25. The American
Center for Court Innovation characterizes “community courts, drug courts, re-entry courts, domestic violence
courts, and mental health courts” as problem-solving courts. See: Center for Court Innovation, Online:
http://www.courtinnovation.org/
309
Australian Law Reform Commission, “Review of the Family Law System: Issues Paper” (2018) Osgoode
Hall Law School Library) at page 65.
80
agencies, community based corrections, probation services and domestic violence
agencies, forming a holistic and integrated approach. This approach encourages
magistrates and judges to take a pro-active and overtly leading role in the creation of
better, well coordinated services for clients.
310
A study of the “international problem-solving court movement,” reports that specialized
problem-solving courts have been accepted in the United States with “enthusiasm, boldness and
pragmatism,” whereas in Canada and some other common law jurisdictions the movement has
been marked by “moderation, deliberation and restraint.”
311
The American Unified Family Court
model, which provides divorce, custody and access and child welfare services, emerged in the
1990s, and has reportedly changed the way family law cases are resolved:
Both the methods and goals of legal intervention for families in conflict have changed.
The roles of judges and lawyers are fundamentally different and less important in this
new regime where dispute resolution has largely moved out of the courtroom to
"problem-solving" teams. Taking a "holistic" approach, these interdisciplinary teams seek
to address both legal and non-legal problems facing the families that come to courts
seeking legal remedies. These developments have profound implications for the family
justice system. They also reflect a broader jurisprudential shift away from the traditional
values of the adversary system in both civil and criminal justice.
312
Commentary suggests judicial actors are most comfortable with self-represented litigants in
problem-solving courts.
313
There are some reported problems, however, including concerns that
the goals of problem-solving models are insufficiently funded, making it difficult to implement a
mandate to provide inter-disciplinary holistic services, and moreover, that it may simply ask too
much of judges and court systems to expect them to adopt to a multitude of roles. As one
commentator remarked:
310
Supra, footnote 7 at page 142. [Australian Law Reform Commission, Discussion Paper]
311
James L. Nolan Jr., “The International Problem-Solving Court Movement: A Comparative Perspective”
(2011), 37 Monash U. L. Rev. 259 at page 261-262. See also supra, footnote 73 at paragraph 41. [Finch]
312
Jane C. Murphy, “Revitalizing the Adversary System in Family Law” (2009-2010), 78 U. Cin. L. Rev. 891.
313
Richard L. Wiener and Eve M. Brank (Eds.), Problem Solving Courts: Social Science and Legal
Perspectives (Springer Science + Business Media, 2013).
81
Courts with their “limited remedial imaginations,” may not be the best institutional
settings for resolving the non-legal issues proponents wish to place within their authority.
As a result, the restructured family courts may be incapable of achieving the formidable
task of “provid[ing] coordinated holistic services ... to address the physical and mental
needs of the family.”
314
A problem-solving model has not been adopted in all American family courts; recent
commentary suggests the use of widely divergent dispute resolution processes. It has been
claimed that many American states “practice more reluctance than implementation”
315
with
respect to problem-solving methods, and that Canada and Australia are more advanced in the use
of therapeutic processes.
316
Conversely, others write that family courts “across the country” have
embraced a paradigm shift away from adversarial processes, and judges now function more as
ongoing conflict managers than as adjudicators, although [e]ven a restructured Family Court may
be incapable of achieving the formidable task of improving the well-being and functioning of
families and children,” and “the more comprehensive and forward-looking tasks envisioned by
the new paradigm call for very different skill sets and institutional capabilities.”
317
(b) Ontario UFCs and the IDVC
In Ontario, Unified Family Courts (UFCs) currently operate in seventeen locations,
318
excluding
Toronto. The Federal Budget passed in February 2018 approved funding for the expansion of
UFCs to approximately one-half of Ontario Superior Courts, which will make UFCs available to
314
Ibid., at page 898. [Murphy]
315
Marsha B Freeman, “Comparing Philosophies and Practices of Family Law Between the United States and
Other Nations: The Flintstones vs The Jetsons” (2010) 13 Chap. L. Rev. 249 at page 254.
316
Ibid., at pages 255 and 259.
317
Supra, footnote 1 at page 367. [Singer]
318
UFCs currently exist in Barrie, Bracebridge, Brockville, Coburg, Hamilton, Cornwall, Kingston, L’Orignal,
Lindsay, London, Nappanee, Newmarket, Ottawa, Oshawa/Whitby, Perth, Peterborough and St. Catherines.
82
roughly one-half of the province’s population,
319
with plans to complete a province-wide
expansion by 2025.
320
This is a very significant development which has been the subject of
decades of reform advocacy.
321
An important rationale for UFCs is jurisdictional; if a divorce is sought, the federal Divorce
Act
322
governs custody and support; if no divorce is sought provincial legislation governs
custody and support, in Ontario under the Family Law Act
323
and the Children’s Law Reform
Act.
324
In UFCs, proceedings under all of the above statutes, as well as the Child, Youth and
Family Services Act
325
can be heard in the same court.
UFCs were reportedly inspired by the “multi-door courthouse” concept in which doors in the
same hallway lead to different process options.
326
UFCs offer mandatory information programs,
non-mandatory free on-site mediation for two hours, reduced fee offsite mediation, community
referral coordinators, and limited legal advice and assistance at Family Law Information
Centers.
327
Bala notes that the UFC’s specialized judges are better able to assist self-represented
litigants,
328
and that UFCs are the best option for limiting delay and managing continuing
319
Supra, footnote 12. [Epstein, This Week in Family Law] The author reports that the new Ontario UFC sites
will be located in St. Thomas, Welland, Kitchener, Simcoe, Cayuga, Belleville, Picton and Pembroke; other
provinces in which UFCs will be newly located or expanded include Alberta, Newfoundland and Nova Scotia.
See also: The Lawyers Daily, Lexis-Nexis, “Ontario Unified Family Court Proposal Calls for Province Wide
Expansion By 2025” (September 25, 2017) reporting upon an interview with Nicholas Bala.
320
Ibid. [Epstein, This Week in Family Law] Further funding appears to be anticipated, but not yet formally
granted.
321
Ibid. [Epstein, This Week in Family Law]
322
Supra, footnote 14. [Divorce Act]
323
Family Law Act, RSO 1990, c. F.3.
324
Children’s Law Reform Act, R.S.O. 1990, c. 12.
325
Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1
326
Supra, footnote 40 at page 11. [Semple and Bala, Reforming the Family Justice System]
327
Ibid., at page 188. [Semple and Bala, Reforming the Family Justice System]
328
Supra, footnote 319. [Bala, Ontario Unified Family Court Proposal]-
83
conflict cases.
329
The newly created UFCs will be specialized, although the extent to which the
UFCs incorporate related family services seems unclear as yet, and will depend upon funding.
330
The Integrated Domestic Violence Court (IDVC) was established in Toronto in 2011 as part of
the Ontario Court of Justice (Provincial Court) and is reportedly an effective problem-solving
court. Its mandate is to facilitate consistent decision-making informed by knowledge of domestic
violence, and to increase efficiency by dealing with family and related criminal law matters in
one forum, in sequence, before a single judge.
331
The goal of domestic violence courts is to
increase accountability of offenders, provide a better connection to social services, encourage
treatment, and improve safety for victims and children.
332
The IDVC is a branch of the Ontario
Court of Justice, and therefore its jurisdiction over family law is limited to custody and support
issues.
333
Its goals are to increase expertise and facilitate informed decision-making, consistently
handle multiple cases involving the same parties, eliminate conflicting orders, decrease delay,
and reduce cost.
334
The court is relatively well-resourced: it has a dedicated Crown attorney,
criminal and family duty counsel, a community resource worker, a “victim witness services court
worker,” a “family support worker” to provide community referrals for victims of violence, and a
Family Law Information Centre staff member available for consultation.
335
329
Supra, footnote 206 at page 446. [Bala, Birnbaum, and Martinson]
330
Supra, footnote 9, at page 313. [Bala, Reforming Family Dispute Resolution]
331
Julianna Dalley, “One Family, One Judge: Towards a New Model for Access to Justice for Families Facing
Violence in BC” (2013), 18 Appeal: Rev. Current L. & L. Reform 3 at page 8.
332
Rachel Birnbaum, Nicholas Bala and Peter Jaffe, “Establishing Canada’s First Integrated Domestic
Violence Court: Exploring Processes, Outcomes, and Lessons Learned” (2014) 29 Can. J. Fam. L. 117 at page
127.
333
Supra, footnote 331. [Dalley]
334
Supra, footnote 332 at page 143-144. [Birnbaum, Bala and Jaffe]
335
Ibid., at page 147. [Birnbaum, Bala and Jaffe]
84
A 2014 qualitative study of the IDVC examined the experiences of twenty-one “stakeholders,” a
group comprised of seventeen professionals (including judges, crown attorneys, court support
workers, and criminal and family lawyers), one male offender, one female offender, and two
female victims.
336
The reported findings include: judges regard information sharing as valuable,
Crown prosecutors had generally positive views, lawyers representing parents were generally
optimistic about the potential for the court, although less satisfied than Crown attorneys, and
(surprisingly) too many services are provided in “an uncoordinated way.” The authors report that
the majority of stakeholders were “on the whole positive” about the potential of the court and
their experiences to date but conclude that to be successful the court will require more
specialized support services and greater administrative support. The authors note the need for
further research in which the experiences of victims, offenders and children are explored. The
two abuse victims and two offenders interviewed reported positively both on their own
experience with the court, and its impact upon their children.
337
With the exception of the IDVC, Ontario courts that routinely deal with family law cases
(Provincial Courts, and Superior Court-Family Division) do not appear to be problem-solving
courts, and with the exception of UFCs, they are not highly specialized. Generalist judges still
deal with family law matters in many Ontario courts, and specialized expertise within UFCs does
not generally extend beyond a thorough knowledge of the law. It does not necessarily include an
informed understanding domestic violence, power dynamics, mental health and high conflict, as
336
Ibid., at page 154. [Birnbaum, Bala and Jaffe]
337
Ibid., at page 169. [Birnbaum, Bala and Jaffe]
85
recommended by the Ontario Law Reform Commission Report referred to above.
338
As one
author notes:
[T]he reality is that our Rules were meant to have both specialized judges running a
specialized court, clearly something we do not have. Instead, we have a patchwork of
courts, nominally united under the rubric of the Family Court of the Superior Court of
Justice, but without any consistency of approach or practice.”
339
Increasing the family-related expertise of judges and expanding access to family services may
well be a goal under the planned UFC expansion.
(c) Specialized Family Courts in the UK and Australia
In England and Wales, specialized family courts with “an integrated social welfare function”
were first established in 1975,
340
and as of 2001, the Children and Family Court Advisory and
Support Service (Cafcass) has carried out this social welfare function through a staff of social
workers known as Family Court Advisers.
341
The Final Report of the UK Family Justice
Review, known as the “Norgrove Report,” was released in 2011; it describes the family court
system in England and Wales as “facing immense stress and difficulties” and “failing children
and families through its disorganised, fragmented structure, and experiencing chronic delay.”
342
These problems are attributed in part to a three-tiered court process, the reform of which was
uncontroversial, and in part to problems related to coordinating family services. It had been
noted in commentary that judges in family courts were increasingly cast in the role of case
managers and "team leaders” for a range of court related support services, including Cafcass, all
338
Supra, footnote 205. [Law Commission of Ontario, Voices from a Broken Family]
339
Stephen Grant, “Alternative Dispute Resolution in Family Law: What's Not to Like?” (2008), 27 Can Fam
LQ 235.
340
Julie Doughty, “Identity Crisis in the family courts? Different approaches in England and Wales and
Australia” (2009) 31(3) Journal of Social Welfare and Family Law 231 at page 236.
341
See: cafcass.gov.uk
342
Supra, footnote 246 at page 340. [Doughty and Merch]
86
of which were accountable to the judge.
343
Moreover, it was noted that “individuals and
organisations across different parts of the system often did not trust each other and there was “no
set of shared objectives to bind agencies and professionals to a common goal.”
344
The Norgrove Report recommended an increased focus on mediation, with court proceedings as
a last resort, and in 2011, a new mediation information and assessment program (MIAMs) was
introduced as part of the family court system; it did not attract large numbers, but the following
year became mandatory for cases involving children.
345
Julie Doughty observes that the practice
of directing cases away from formal hearings and into a less formal mediation process has not
been accepted by lawyers or the public, and has raised questions about legitimacy.
346
She notes
an ongoing tension between the social welfare and legal functions of family justice systems:
Within both the English and Australian family justice systems, a relationship between the
judicial system and a social welfare or behavioral science service is seen as vital in
resolving parenting disputes, but the expectations of such a service are inherently
contradictory…both systems have been seen by policymakers and the public as unduly
delaying and obstructing parental agreement.
347
The UK government has reportedly accepted almost all of the Norgrove Report’s
recommendations and responded with a “radical reorganization” of UK family courts, including
the creation of a new multi-disciplinary “Family Justice Service” with responsibility for court
social work services, mediation (with a stronger triage component), information services, and
343
Ibid., at page 341. [Doughty and Merch]
344
Ibid., at page 340, [Doughty and Merch]
345
Supra, footnote 246 at page 341. [Doughty and Merch]
346
Supra, footnote 340 at page 231. [Doughty, Identity Crisis]
347
Ibid., at page 239. [Doughty, Identity Crisis]
87
continuing professional development.
348
The reforms have led to concern about the effects of an
“interdisciplinary teamwork” approach upon judicial independence.
349
Significant reform of Australia’s family law system began with the opening of its first Family
Court in 1976; policy objectives included creating a specialist court with an informal process,
and “one-stop shop” for legal and counseling services to help resolve family law disputes.
350
Doughty writes that “helping courts” in Australia did not, for decades, prove more satisfactory
than the English system, but through the Less Adversarial Trial, the Australian family justice
system appeared to have achieved a better balance between social welfare and legal functions,
and greater public acceptance of diverting cases away from the courts.
The Less Adversarial Trial (“LAT”), emerged out of the Children’s Cases Program (“CCP”)
which was inspired by a 2002 court-based study undertaken to learn more about European
inquisitorial-based approaches to children’s cases.
351
By 2004 the court had developed a pilot
model (the CCP), the goals of which were: minimizing delay, early identification of the issues,
judicial authority to limit evidence to these issues, reduced focus on past parental grievances,
emphasizing the best interests of the child, minimizing adversarialism, and developing strategies
to assist parents in future cooperation.
352
An empirical research study on parental experiences of
the CCP reported that a majority of parents described better management of conflict, less damage
to relationships, greater satisfaction with living arrangements, and improved children’s
348
Supra, footnote 8 at page 200. [Parkinson]
349
Supra, footnote 246 at page 334. [Doughty and Merch]
350
Supra, footnote 309 at pages 16-17. [Australian Law Reform Commission, Issues Paper]
351
Supra, footnote 6 at page 126. [McIntosh et al]
352
Ibid., at page 127. [McIntosh et al]
88
adjustment. A control group that experienced a traditional adversarial court process reported
further antagonism and significantly higher levels of strain on children.
353
Legislative amendments known as “Part VII Division 12A”
354
created the successor to the CCP,
the Less Adversarial Trial. The LAT is a strong judicial case management system, not a single-
event trial, and is based upon inquisitorial processes.
355
It is self-described as more flexible and
informal, and less costly than ordinary court systems.
356
Except in family violence cases,
applications to the court involving children must be preceded by attendance at a Family
Relationships Centre (FRC) or similar service for informal dispute resolution. Family
Relationship Centres are government run and provide information and referral services aimed at
developing a parenting plan. Mediation, known as “Family Dispute Resolution” is provided free
of charge regardless of income for one hour; an additional two hours is charged at the rate of $30
per hour for clients with an annual income of $50,000 or more. These centres also offer
information sessions and referrals to outside services such as “family law counselling” and
“programs about parenting after separation.”
357
In the event that settlement is not reached, a first trial day is scheduled, also known as an
assessment conference. Parties are required to complete and file a Parenting Questionnaire
353
Supra, footnote 6 at page 130. [McIntosh et al]
354
See: John Faulks, “A Natural Selection – The Potential and Possibility for the Development of Less
Adversarial Trials by Reference to the Experience of the Family Court of Australia” (2010) 35 U.W. Austl. L.
Rev. 185 at page 189-194.
355
Supra, footnote 6. [McIntosh et al.]
356
Family Court of Australia, online services:
http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/reports-and-publications/publications/court-
events/less-adversarial-trials
357
Family Relationships Centres, an Australian Government Initiative, online:
https://www.familyrelationships.gov.au/talk-someone/centres
89
twenty-eight days in advance of the first day.
358
A Financial Questionnaire and Balance Sheet
must be filed later, within nine weeks of the initial assessment conference.
359
A Family Consultant attends the assessment conference and remains involved throughout the
LAT process. The role of a family consultant can include providing parenting plan advice,
conducting a child or family assessment, holding child-inclusive mediation, and acting as an
expert adviser to the court by presenting research-based recommendations.
360
Julie Doughy
observes that Family Consultants have come to be seen as esteemed experts, whereas the
reputation of Cafcass’ Family Court Advisers has bureaucratic overtones, in part because they
work in both public and private family law cases and are regarded as “operatives of the welfare
state.”
361
In the assessment conference, parties are encouraged to explain what they are seeking directly to
the judge or, if they wish, may have a lawyer speak for them. The judge identifies the evidence
required (in conjunction with lawyers, if present) and is meant to restrict it to that which is
required to decide the issues. The judge decides what expert reports are required and what they
will address, and may make referrals to community-based services, such as counseling or
parenting education programs, or make interim orders with respect to child care. The judge is
empowered to control the order in which witnesses are called, what evidence is to be given orally
or in documentary form, and the extent of cross examination.
362
Between the first and final days,
358
Supra, footnote 356. [Family Court of Australia, online services]
359
Ibid. [Family Court of Australia, online services]
360
Supra, footnote 340 at page 239. [Doughty, Identity Crisis]
361
Ibid., at page 232. [Doughty, Identity Crisis]
362
Ibid. [Doughty, Identity Crisis]; see also: supra, footnote 356. [Family Court of Australia, online services]
90
the hearing may be continued by telephone: affidavits and expert reports may be discussed,
further evidence may be identified, and interim and procedural orders may be made.
363
It has
been noted that among judges, the LAT “is not everyone’s cup of tea.”
364
The Australian Law Reform Commission recently reviewed the operation of Australian family
courts,
365
as noted above. Its mandate was to consider “redevelopment “of the family law system
“as a whole, in an integrated and holistic, rather than piecemeal, way.”
366
The first document to
emerge from this Inquiry, the Issues Paper, was released in 2018. It asserts that current problems
in the family law system include increasing delays in the courts, increasing cost of legal services
and expert reports, limited support for children’s participation in proceedings, difficulty
achieving safe outcomes for victims of family violence and their children, and “concerns about
the adversarial nature of legal processes and the impact on parental and child well-being.”
367
The report observes growing debate in Australia over the affordability of services and processes
related to family dispute resolution, the proportionality of costs incurred in family law cases, the
continued conceptualization of family dispute resolution as a “single event process,” and, once
again, “the appropriateness of adversarial processes, and the ethics of adversarial practices, in
any system concerned with the well-being of children.”
368
[emphasis added]
The mandate assigned to the Australian Law Reform Commission has familiar ring; it speaks of
the need “for reform to the culture, structure and governance of the family law system” and “to
363
Supra, footnote 354 at pages 189-190. [Faulks, A Natural Selection]
364
Ibid., at page 195. [Faulks, A Natural Selection]
365
Supra, footnote 309. [Australian Law Reform Commission, Issues Paper]
366
Ibid., at page 13. [Australian Law Reform Commission, Issues Paper]
367
Ibid., at page 19. [Australian Law Reform Commission, Issues Paper]
368
Ibid. [Australian Law Reform Commission, Issues Paper]
91
encourage the resolution of family disputes as quickly and affordably as possible, and in a way
that is the least harmful, and most protective, of the safety and well-being of all involved,
particularly children.” The Commission notes further needs: to identify the objectives of a
contemporary family law system and the principles that should guide it, as well as barriers that
might affect access to the system; to develop integrated services for families with complex
needs; to support the involvement of children in the family law system; and to identify the
competencies and skills required of family law system professionals.
369
The second document to emerge from the Australian Law Reform Commission review is the
Discussion Paper, released in October 2018.
370
It, too, solicits further public and stakeholder
input. The Discussion Paper makes proposals for change similar to those suggested in Canadian
literature and reports
371
including clearer legislation,
372
and the establishment of multi-
disciplinary community-based “Families Hubs” to provide separating families and children with
visible entry points for access to a wide range of legal and support services in areas including
family violence, legal assistance services, informal dispute resolution, family counseling,
housing, and health services.
373
The LAT is reportedly the process used in most cases that require adjudication in Australia.
374
The Issues Report says little that expressly relates to the LAT, other than to note that the use of
Part VII Division 12A (the LAT case management approach) has “waned over time,” and that its
369
Ibid., at pages 12-19. [Australian Law Reform Commission, Issues Paper]
370
Supra, footnote 7. [Australian Law Reform Commission, Discussion Paper]
371
Supra, footnote 23. [Family Justice Working Group Report]
372
Supra, footnote 7 at page 34. [Australian Law Reform Commission, Discussion Paper]
373
Ibid., at page 158. [Australian Law Reform Commission, Discussion Paper]
374
Supra, footnote 340 at page 240. [Doughty, Identity Crisis]
92
processes may “consume too much judicial time,” given the persistent problem of hearing
delays.
375
The Discussion Paper notes that some submissions to the Commission have praised the
LAT initiative, but many stakeholders described a need for less adversarial processes “for
children’s matters more generally,” and movement toward a more “solution-based” process.
376
It
approvingly refers to problem-solving courts “such as those that are increasingly used in other
jurisdictions to deal with matters where behavioural problems complicate the resolution of legal
disputes…where an ongoing relationship between the parties needs to be preserved, as is the case
in most disputes about the care of children.”
377
2.10 Summary
This chapter has discussed problems associated with family litigation in court systems,
particularly with respect to self-represented litigants.
375
Supra, footnote 309 at page 65. [Australian Law Reform Commission, Issues Paper]
376
Supra, footnote 7 at page 140. [Australian Law Reform Commission, Discussion Paper]
377
Ibid., at page 141. [Australian Law Reform Commission, Discussion Paper]
93
3. VULNERABILITY THEORY AND ANALYSIS
3.1 Theory
Martha Fineman’s vulnerability theory advocates for “a more responsive state and a more
egalitarian society.”
378
The term “vulnerability,” often associated with stigma, victimhood,
dependency, deprivation and even pathology,
379
is claimed by Fineman to designate a constant
and universal aspect of the human condition, indeed, the “primal human condition.”
380
The
theory holds that while vulnerability is constant and universal, it is manifested and experienced
episodically, and levels of vulnerability vary in degree throughout a lifetime.
Vulnerability theory suggests the “vulnerable subject” replace the “universal liberal subject”
constructs,
381
which valorize autonomy, self-sufficiency and personal responsibility and are, in
their general application, oblivious to vulnerability. She writes that the liberal subject, when
these concepts were formed, envisioned a white, property-owning, tax-paying adult male,
382
and
while legal subjectivity has grown to encompass formerly excluded groups, the modern legal
subject still centres on the needs and political sensibilities of a narrow and privileged minority.
383
In contrast, the vulnerable subject is subject to constant change, fragile in embodiment and life
378
Supra, footnote 17 at page 1. [Fineman, Anchoring Equality]
379
Supra, footnote 77. [Mboya]
380
Martha Albertson Fineman, “Equality and Difference – The Restrained State” (2015) 66 Ala. L. Rev. 609 at
page 614.
381
Martha Albertson Fineman, “Equality, Autonomy and the Vulnerable Subject in Law,” in Vulnerability:
Reflections on a New Ethical Foundation for Law and Politics, Anna Grear, Martha Albertson Fineman (eds.)
supra footnote 67.
382
Supra, footnote 380. [Fineman, Restrained State] at page 616.
383
Martha Albertson Fineman, “Vulnerability and Inevitable Inequality” (2017) 4 Oslo L.Rev 133 at page 148.
94
circumstance, and socially interdependent.
384
The theory suggests the vulnerable subject is a
more accurate and complete figure than the “liberal subject” to place at the heart of social policy
and state responsibility.
385
A vulnerability theory analysis does not disregard the importance of typical group identifiers
such as race and gender, although it argues that they may obscure institutional forces that
distribute privilege and disadvantage in ways that do not correlate to traditional identity
categories, and justify limited government responsibility by implying that state processes are fair,
except for rare and discoverable instances of discrimination.
386
Vulnerability theory is intended
to supplement and complement identity-based analyses, by considering the effects of law and
social institutions upon segments of the population that do not have common characteristics
other than vulnerability.
387
The “vulnerability paradigm” recognizes the sameness of individuals (their common
vulnerability) as well as their individual differences.
388
Vulnerability obviously manifests itself
in various ways on the individual level simply due to the vicissitudes of life; it is also manifested
variously because personal characteristics, such as infancy, old age, race, gender, and sexual
orientation contribute to different types and fluctuating levels of vulnerability,
389
and because
humans are differently “embedded” in social relationships and within social institutions.
390
The
384
Deborah Dinner, “Vulnerability as a Category of Historical Analysis: Initial Thoughts in Tribute to Martha
Albertson Fineman” (2018) 67 Emory L.J. 1149 at page 1151.
385
Supra, footnote 17 at page 8. [Fineman, Anchoring Equality]
386
Supra, footnote 60 at page 254. [Fineman, Responsive State]
387
Supra, footnote 17 at page 21. [Fineman, Anchoring Equality]
388
Supra, footnote 380 at page 624. [Fineman, Restrained State]
389
Ibid., at page 619. [Fineman, Restrained State]
390
Supra, footnote 380 at page 613. [Fineman, Restrained State]
95
“vulnerability paradox” lies in the simultaneous recognition of vulnerability as both universal
and particular.
391
The consequences of manifested vulnerability are obviously greatly influenced by the resources
one can command to deal with them; in vulnerability theory this is framed in terms of levels of
resilience.
392
No one is born with resilience; it is society-generated.
393
It is accumulated over a
lifetime through individual interaction with social constructs such as the family, and public and
private institutions, including education and justice systems, which confer support, privilege and
power.
394
The role of the state and its institutions is to foster resilience: to enhance individual
capacity to withstand harm by ensuring equal access to resource-generating social institutions
395
and actively structure institutions to ensure they do not privilege any group of citizens over
another. Vulnerability theory is premised upon the vulnerable subject having been ignored in
favor of a “neoliberal fixation on personal responsibility, buoyed by an insistence that only a
severely restrained state can be a responsible one.”
396
In case this should strike the reader as a
radical and outsider perspective, I note that Justice Cromwell has written of justice system
reform that it tends to improve the system for the benefit of those who already benefit from it,
with little fundamental change.
397
391
Ibid., at page 618. [Fineman, Restrained State]
392
Supra, footnote 17 at page 19. [Fineman, Anchoring Equality]
393
Martha Albertson Fineman, (2015) “Vulnerability and the Institution of Marriage” 54 Emory L.J. 2089 at
page 2090.
394
Supra, footnote 17 at page 6. [Fineman, Anchoring Equality]
395
Nina A. Kohn, “Vulnerability Theory and the Role of Government” (2014) 26 Yale J.L. & Feminism 1at
page 9.
396
Supra, footnote 380 at page 616. [Fineman, Restrained State]
397
Supra, footnote 27. [Cromwell, Neither Out]
96
The vulnerable subject is not limited to the individual. Vulnerability theory argues that
institutions are also vulnerable: they can be captured, corrupted, damaged, outgrown, and
compromised by legacies of practices, patterns of behavior and “entrenched interests that were
formed during periods of exclusion and discrimination, but are now invisible in a haze of lost
history.”
398
According to vulnerability theory, it is typical for the state to minimally monitor
whether its institutions confer assets that foster resilience.
399
A vulnerability theory analysis examines whether social institutions enable individuals to behave
in ways that perpetuate resource imbalances, such that those already privileged are benefited, and
those already less privileged are further disadvantaged.
400
The theory holds that the valorization
of autonomy and individual responsibility has permitted profound institutionally embedded
inequality to be tolerated. Fineman advocates for a legal culture in which the state is obliged to
either justify inequality or remedy it by reforming institutional arrangements.
401
Vulnerability theory is often discussed in terms of a formal and substantive equality. In a recent
article, Fineman argues that vulnerability theory goes beyond equality, which she characterizes
as a “limiting aspiration” for social justice.
402
She notes that “inevitable inequality” (not always a
bad thing, for example, in such parent-child and employer-employee relationships), is typically
addressed in law and policy by declaring that an equality mandate does not apply because the
individuals to be compared are positioned differently, or by imposing a “fabricated equivalence”
398
Supra, footnote 17 at page 18. [Fineman, Anchoring Equality]
399
Ani B. Satz, “Disability, Vulnerability and the Limits of Antidiscrimination” (2008) 83 Wash. L. Rev. 513
at page 528.
400
Supra, footnote 395 at page 7. [Kohn, Role of Government]
401
Supra, footnote 17 at page 18-19. [Fineman, Anchoring Equality]
402
Supra, footnote 383 at page 134. [Fineman, Inevitable Inequality]
97
between individuals, despite that they occupy obviously unequal bargaining positions.
403
It is the
latter that is troubling, as it suggests ignoring power imbalances for which there is no justifying
rationale, for example, by way of a compensatory benefit to the weaker party.
Fineman acknowledges that vulnerability theory was crafted for an American audience, and
indeed, the theory clearly challenges the Lockean foundations of American liberalism and the
bootstraps underpinnings of the American dream. Its application, however, has not been
restricted to American law and society. Fineman herself locates the liberal subject in “liberal
Western democracies”
404
and notes that vulnerability theory “allows for the adaptation of
solutions appropriate to differing legal structures and political cultures.”
405
She states that the
theory has potential to extend even beyond the Anglo-American context, because neoliberalism
informs social relations within European and Latin American countries as well.
406
While neoliberalism ebbs and flows at the provincial and federal government levels in Canada, it
is an enduring political current, plainly visible in present-day Ontario. I argue that vulnerability
theory’s challenge to neoliberalism’s focus on personal responsibility has relevance here. Despite
that Canadian and American culture and society obviously differ in fundamental ways, it does
not, of course, follow that Canadian laws and social institutions are fully responsive to the
vulnerable subject.
403
Ibid. [Fineman, Inevitable Inequality]
404
Supra, footnote 383 at page 133. [Fineman, Inevitable Inequality]
405
Ibid., at page 134. [Fineman, Inevitable Inequality]
406
Ibid., at page 134 FN 1. [Fineman, Inevitable Inequality]
98
A vulnerability theory analysis is not merely critical, it is also “generative;” it is intended to be
useful for constructing a critical perspective on political and social institutions.
407
Vulnerability
theory has been applied in contexts as varied as assisted reproductive technology and housing
policy,
408
disability law,
409
climate change,
410
legal history
411
and colonial capitalism.
412
For
example, Anna Grear has argued that capitalism has progressed by rendering human subjectivity
either partial or nonexistent, and law must now face up to an emerging ethical demand.
413
She
cites examples of instances in which human subjectivity is, or has been, ignored or trampled
upon, including the disposition of indigenous people by colonialism, corporate neocolonialism in
the developing world, the effects of global industry on the environment, and predictable patterns
of advantage and disadvantage in the developed world. Atieno Mboya has conducted a
vulnerability theory analysis of climate change in which individual states are cast as the
vulnerable subject under international law, and their levels of vulnerability are connected to
geographic location and positioning within the global political economy.
414
The argument there
is that a legal subject built upon ideology that prioritizes liberal values over equality distorts
407
Supra, footnote 77 at page 95. [Mboya]
408
Supra, footnote 395 at page 3, footnote 9. [Kohn, Role of Government] The author refers to Helen Carr,
“Housing the Vulnerable Subject: The English Context” in Vulnerability: Reflections on a New Ethical
Foundation for Law and Politics, supra, footnote 67 at page 107 (Kindle Edition) and Rachel Fenton,
“Assisted Reproductive Technology Provision and the Vulnerability Thesis: From the UK to the Global
Market” in Vulnerability: Reflections on a New Ethical Foundation for Law and Politics, Ibid., footnote 67 at
page 125 (Kindle Edition).
409
Supra, footnote 399. [Satz]
410
Supra, footnote 77. [Mboya]
411
Supra, footnote 384. [Dinner]
412
Anna Grear, “Vulnerability, Advanced Global Capitalization and Co-Symptomatic Injustice: Locating the
Vulnerable Subject” in Vulnerability: Reflections on a New Ethical Foundation for Law and Politics, supra,
footnote 67 at page 41 (Kindle Edition).
413
Ibid., at page 41. [Grear]
414
Supra, footnote 77 at page 86. [Mboya]
99
concepts such as “choice” and “consent,” and justifies the ongoing exploitation of weaker
states.
415
Vulnerability theory’s momentum as an analytical tool for the justification of policy change has
drawn criticism. It has been asserted that the theory tends to promote unduly paternalistic
policies and has limited prescriptive value,
416
fails to appreciate that autonomy and independence
are deeply held social values, particularly in the United States;
417
and that in its application it has
adopted the identity-based approach that the theory is considered (by some) to oppose.
418
In my view, what for some are “unduly paternalistic polices” may be entirely consistent with
Fineman’s concept of the “more responsive state.”
419
Similarly, the use of identity categories in a
vulnerability analysis is consistent with Fineman’s articulation of the theory, in which identity-
based characteristics may be a complementary, rather than competing, analytical tool. As to the
theory’s prescriptive value, the argument is that vulnerability theory provides little guidance as to
how to prioritize among vulnerable subjects (and makes this decision more problematic by
emphasizing the universality of vulnerability), and should be refined by defining vulnerability in
relation to a particular problem – the result of a relationship between an individual and a context,
environment or situation.
420
In my view vulnerability theory analysis does just that – through its
analysis of relationships between vulnerable individuals and social institutions.
415
Ibid., at page 80. [Mboya]
416
Supra, footnote 395 at page 5. [Kohn, Role of Government]
417
Morgan Cloud, “More than Utopia” in Vulnerability: Reflections on a New Ethical Foundation for Law and
Politics, supra, footnote 67 at page 77.
418
Supra, footnote 395 at page 27. [Kohn, Role of Government]
419
Supra, footnote 60 at page 251. [Fineman, Responsive State].
420
Supra, footnote 397 at page 26-27. [Kohn, Role of Government] The author points to a need to “move
beyond stereotypes and assumptions about who is or who is not vulnerable to a particular problem toward
“evidence-based understandings of social needs and risks.”
100
3.2 Analysis
I argue that legal institutions responsible for custody and access dispute resolution should be
designed for the vulnerable subject. Vulnerability theory holds that the universal “liberal subject”
envisions a competent, fully functioning adult, whereas the “vulnerable subject” may have
social, economic, or biological limitations
421
that must inform the operation of law state
institutions. Indeed, research regarding self-represented litigants in family law court systems
suggests that for a significant number, the emotional effects of family upheaval may be similar to
manifested physical disability, that is “a simultaneous experience of threat and the weakening of
coping mechanisms.”
422
And then there are the children.
Fineman has described children as “the paradigmatic vulnerable subjects.”
423
She describes
“derivative dependence” as a form of dependence that attaches to a social role or position, and is
manifested as a consequence of the vulnerability of someone else.
424
Fineman cites the example
of a male family member who suffers emotionally and financially as a consequence of adopting a
caretaking role; the burden and resulting dependence are unrelated to his own identity. In my
view, the same may be said of children whose parents are dependent upon family law systems in
custody cases. The literature suggests the effects of parental engagement in family litigation are
often passed on to their children, who, moreover, may suffer long-term adverse consequences, as
noted in Chapter Two. Vulnerability theory suggests the state has an obligation to build
structures from which every person will benefit, and to enhance resilience in the face of
421
Supra, footnote 399 at pages 527 and 530. [Satz]
422
Ibid., at page 524-525. [Satz]
423
Supra, footnote 393 at page 2089. [Fineman, Vulnerability and the Institution of Marriage]
424
Supra, footnote 380 at page 621. [Fineman, Restrained State]
101
manifested vulnerability.
425
This obligation is, with respect to children, further supported by the
argument that the societal obligation to protect children does not end at the boundary between
public and private law, and surely must include effectively shielding children from the damaging
effects of the state’s own institutions. The United Nations Convention of the Rights of the Child,
provides, among other things, that all children are entitled to protection.
426
I argue that vulnerability to family upheaval is universal and constant and may become manifest
in a myriad of ways within the broad context of separation and divorce. Once manifested it is
managed through family law systems: that is, legislation and social institutions such as state-
sponsored courts and their adjunct services. On the level of individual experience, I argue that
the following are examples of those for whom this common vulnerability has become manifest:
- self-represented parties who face a represented party;
- self-represented parties who face an opposing party with more resilience; that is, one
who can more easily bear the financial and/or emotional costs of family litigation, or
who has more social capital to apply to self-informing and navigating family law
systems;
- parties who have been or continue to be victims of domestic violence;
- parties who are drawn into family law processes through manipulative claims, such as
custody applications filed to further a pattern of dominance and control, or motivated
primarily to reduce child support;
425
Supra, footnote 399 at page 526. [Satz]
426
United Nations Convention of the Rights of the Child (1990) online:
https://www.ohchr.org/en/professionalinterest/pages/crc.aspx
102
- parties who are drawn into family law processes through false claims of child abuse
or parental alienation;
- parties who avoid legal systems out of fear and thereby further risk their own safety,
and possibly that of their children;
- parties involved in cases cannot and should not settle and for whom the only
affordable alternative to negotiation is a state-sponsored dispute resolution system
that is damaging to families; and
- children whose who are placed in a position of derivative dependency because their
parents are dependent upon family court systems.
Consistent with vulnerability theory, the non-exclusive list of vulnerable subjects set out above is
not based upon identity categories such as gender, race, or social class. It must be understood
that vulnerability theory does not suggest that all individuals within a vulnerable population are
identically or equally disadvantaged as a result of manifested vulnerability. To the extent that
some vulnerable subjects are more resilient than others, vulnerability theory suggests other social
systems and institutions, such as the family and educational institutions, have provided them
with more resources, and hence more resilience. At the level of individual experience, a
vulnerability theory analysis engages the persistent family law theme of power imbalance.
Fineman notes that the universal subject is given “modified legal subjectivity” based only upon
certain kinds of deviation from the legal subject.
427
Examples in family law would include the
doctrines of mistake, unconscionability, and duress, which may be used to challenge marriage
427
Supra, footnote 383 at page 144. [Fineman, Inevitable Inequality]
103
contracts and separation agreements, and which allow the law to respond, in some cases, to
exceptional peculiarities and sensitivities. Vulnerability theory argues that this sort of targeted
approach to some manifestations of power imbalance implies that power imbalances are, on the
whole, exceptional, and that everyday power imbalances (or, as vulnerability theory would put it,
uneven “levels of resilience”) are not worthy of redress.
Vulnerability theory argues that the ideologies of autonomy, self-sufficiency and personal
responsibility have so idealized individual “choice” that the ways in which social institutions
perpetuate and sometimes exacerbate inequality are taken for granted; they are tolerated as the
inevitable effects of free choice and individual responsibility. Vulnerability theory acknowledges
that autonomy is a desirable aspiration but asserts that it cannot be attained without societal
support through social institutions, which provide the resources needed to “create options and
make choices.”
428
It points to the need to question the autonomy-based choices which law and
legal institutions appear to offer, and, in my view, supports the argument made in this thesis that
the “choice” to negotiate or settle is illusory in the absence of accessible adjudication.
429
Several authoritative sources are cited in Chapter Two in support of the general proposition that,
as the Canadian Judicial Counsel put it,
[s]elf-represented persons…may find court procedures complex, confusing and
intimidating; and they may not have the knowledge or skills to participate actively and
effectively in their own litigation...[and] the average person may be overwhelmed by the
simplest of court procedures.
430
428
Supra, footnote 60 at page 260. [Fineman, Responsive State]
429
As noted above, the illusory nature of this choice is reflected in commentary in which family litigation, the
state-sponsored alternative to settlement, has been described as “a catastrophic experience” for the middle
class. See supra, footnote 278. [Thompson, Judge as Counsel]
430
Supra, footnote 126. [Statement of Principles on Self Represented Litigants]
104
Family court systems have, of course, been modified in numerous ways to adapt to self-
represented litigants, as discussed above. Nonetheless, as I have argued above, court-based
reforms do not yet appear to have significantly ameliorated the effects of family litigation.
Moreover, a vulnerability theory analysis suggests, based upon the reported experiences of self-
represented litigants in family court systems, that existing Ontario court systems do not yet
adequately compensate for the embedded advantages and disadvantages they confer upon
represented and self-represented litigants. I argue that to the extent that court systems provide
constrained assistance to self-represented litigants in the face of obviously unequal bargaining
positions, they silently endorse what Fineman has termed “fictitious equality.”
431
A vulnerability analysis is distinct in that it is focused upon whether existing institutional
arrangements are responsive across groups with shared vulnerability (or whether, conversely,
they perpetuate existing advantages and disadvantages), and it avoids blaming the individual for
his or her manifested vulnerability
432
or treating it as a mere side-effect. To the extent that the
vulnerable subjects described in the list set out above are disadvantaged by the operation of the
family court system – for example, due to limited assistance available to self-represented litigants
in a fundamentally adversarial institution, judicial discomfort with custody decisions,
institutionalized settlement pressure, family dynamics which require something other than
judicial expertise to unwind and redress, or simply childhood status – a vulnerability theory
analysis suggests that the court system perpetuates existing patterns of advantage and
disadvantage.
431
Supra, footnote 383 at page 135. [Fineman, Inevitable Inequality]
432
Supra, footnote 60 at page 257. [Fineman, Responsive State]
105
Vulnerability theory suggests that true equal access to justice requires the state to “take existing
structural differences into account and work toward their neutralization, so that those who have
been historically disadvantaged are uplifted to a more level playing field.”
433
Despite that this is
an existing goal of some access to justice initiatives, it is not, in my view, surprising that it has
proven difficult to achieve, given that “levelling the playing field” is a vague and contested
vison. How level? What about unfairness to represented parties? What about bias? In a
vulnerability theory framework, which seeks substantive equality for all persons served by state
institutions, “levelling the playing field” is not a controversial or counter-intuitive goal. As
noted, vulnerability theory aims to redefine the parameters of social justice
434
through a
responsive state. I argue here that shifting the focus of policy from the autonomous subject to the
vulnerable subject could help to empower access to justice reform initiatives, including the
Family Justice Working Group Report recommendation for “a more dramatic shift to non-
adversarial approaches,” through “drastic change,” “fundamental overhaul” and a “paradigm
shift.”
435
Vulnerability theory’s focus on institutional change is at odds with reform proposals which rely
upon individuals to independently choose to adopt new work habits. For instance, in a
vulnerability theory analysis of disability law it was argued that it is “both a Sisyphean effort and
an unjust request” to expect employers to change their practices in disadvantageous ways, as it
433
Supra, footnote 380 at page 626. [Fineman, Restrained State]
434
Supra, footnote 383 at page 133. [Fineman, Inevitable Inequality]
435
Supra, footnote 23. [Family Justice Working Group Report]
106
amounts to asking them to dilute their own privilege. The study concludes that only a “top
down” approach to can result in uniform practice reform.
436
As discussed in Chapter Two, the best-interests-of-the-child test has evolved along with
changing social constructions of gender roles, has been the subject of “gender wars,”
437
and as a
result, best-interests-of-the-child presumptions are widely considered to be politically
unfeasible.
438
A vulnerability theory analysis recognizes identity characteristics as factors that
contribute to levels of resilience, but not as a basis for competing entitlements. It avoids allowing
identity arguments to obscure the institutional forces that distribute privilege and disadvantage in
ways that do not correlate to traditional categories of identity. I argue that in family law systems
these forces include an uncertain and litigation-inducing best-interests-of-the-child test.
As noted, vulnerability theory is fundamentally entwined with the concept of substantive
equality. According to Fineman, a “cramped notion of equality”
439
has evolved in American law,
which merely requires formal equal treatment based upon non-discrimination. She writes that
generalized harm or deprivation are not considered forms of inequality that the law can
address,
440
and a formal equality perspective isolates state accountability to cases of
impermissible bias and provides no framework for challenging existing allocations of power and
436
Supra, footnote 399 at page 532. [Satz]
437
Supra, footnote 156 at page 70. [Scott and Emery, Gender Politics]
438
Martha Albertson Fineman, “The Politics of Custody and the Transformation of American Custody
Decision Making” (1989) 22 U.C. Davis L. Rev. 829.
439
Supra, footnote 380 at page 609. [Fineman, Restrained State]
440
Ibid., at page 610. [Fineman, Restrained State]
107
resources.
441
Vulnerability theory is intended to push back against this “impoverished sense of
equality.”
442
The Supreme Court of Canada, in contrast, has been clear that the equality rights guaranteed
under section 15 of the Charter are not limited to formal equality but extend to substantive
equality. The Supreme Court has rejected of a formal equality paradigm by acknowledging that
discrimination may stem from group-based differential treatment, but also from the inequitable
effects of similar treatment, that is, from failure to consider underlying differences between
individuals “in a world of real social and economic group-based differences.”
443
Supreme Court
jurisprudence has described “substantive equality” as requiring the acknowledgment of, and
response to, differences in the experiences of members of a particular group in order that they
may be treated equally, and to “take into account patterns of disadvantage that may require
proactive responses to address.”
444
It is easy to discern parallels between the concept of equality in Canadian law and vulnerability
theory. Notwithstanding this apparent resonance, constitutional scholars have reported
widespread disappointment and frustration with the Supreme Court’s inconsistent
441
Supra, footnote 60 at page 624. [Fineman, Responsive State] The author writes: “The ability of social
institutions to operate in an inclusive, equitable and just manner should be as important to law and policy as
deliberate discrimination against an individual belong to a protected category.”
442
Supra, footnote 17 at page 2. [Fineman, Anchoring Equality]
443
Colleen Sheppard, Inclusive Equality: The Relational Dimensions of Systemic Discrimination in Canada
(McGill University Press, 2010) at page 40.
444
Patricia Hughes, “Supreme Court of Canada Equality Jurisprudence and Everyday Life” (2012) The
Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference Vol. 58 Article 9 at page
246.
108
interpretation
445
and application of the substantive equality standard.
446
This response suggests
that vulnerability theory has not been rendered redundant in Canada by judicial acceptance of a
broad concept of equality. Most importantly, perhaps, the reportedly robust concept of equality
under Canadian law (despite uneven judicial treatment) has legitimized substantive equality as a
policy objective;
447
I argue that this bodes well for the potential to effectively “level the playing
field” through polices supported by the “vulnerability paradigm.”
I do not argue that self-represented litigants are a vulnerable population only within family court
systems. As the empirical research component of this project described in detail below suggests,
self-represented litigants are also vulnerable subjects in the tribunals studied. In particular, a
highly uneven approach to the use of processes such as active adjudication, designed and
adopted to assist self-represented litigants, suggests a random distribution of resources that
privileges and protects those self-represented litigants who happen to be assigned to an active
adjudicator, while tolerating the disadvantage of those who do not. Similarly, self-represented
litigants who are given constrained levels of assistance by adjudicators who, but for the
445
Supra, footnote 383 at page 135. [Fineman, Inevitable Inequality] Fineman notes that in Quebec (Attorney
General) v. A.
445
Justices LeBel and Abella agreed that section 15(1) of the Charter guarantees substantive
rather than formal equality, but LeBel, J. interpreted substantive equality as requiring a distinction based on the
enumerated grounds of discrimination or the perpetuation of prejudice or stereotyping, even when it otherwise
imposed disadvantage on the complainant, whereas Justice Abella did not consider the element of prejudice or
stereotyping necessary, and instead adopted a flexible and contextual inquiry into “arbitrary disadvantage on
the claimant.”
446
Diana Majury, “Equality Kapped; Media Unleashed” (2009) 27 Windsor Y.B. Access Just. 1 at page 2. See
also Patricia Hughes, “Supreme Court of Canada Equality Jurisprudence and Everyday Life” supra, footnote
444 at page 258, and Colleen Sheppard, supra, footnote 456 at page 38; and Jonette Watson Hamilton, Jennifer
Koshan, “Adverse Impact: The Supreme Court’s Approach to Adverse Effects Discrimination under Section
15 of the Charter” (2015) 19 Rev. Const. Stud.191. The authors argue that it is difficult for claimants to
succeed on a substantive equality basis because the Court still uses direct discrimination through stereotyping
as “the paradigmatic case” and therefore often fails to “see” adverse effect discrimination
447
Supra, footnote 444 at page 257. [Patricia Hughes, Supreme Court of Canada Equality Jurisprudence and
Everyday Life]
109
unresolved tension between adversarial norms and institutionally endorsed inquisitorial
processes, would willingly adopt an enabling approach, are subjected to a system of fabricated
equality despite the good intentions of the adjudicator.
Vulnerability theory regards the relationship between the state and its institutions as mutually
dependent. Fineman suggests there is a state interest in taking corrective action if institutions fail
to operate effectively, as the result will be to better ensure that each individual has the resources
needed to withstand manifested vulnerability and function as a productive and participating
citizen.
448
This argument is deeply relevant to our common vulnerability to family upheaval, as it
is especially likely to manifest in ways that interfere with optimum functioning, not only for the
parties themselves, but for their children. I adopt Fineman’s argument that the state ought not to
be cowed by the “autonomy myth”
449
in responding to the present and potential future harm its
institutions may inflict.
448
Supra, footnote 380 at page 625. [Fineman, Restrained State]
449
Supra, footnote 17 at page 2. [Fineman, Anchoring Equality]
110
4. TRIBUNAL CULTURE AND DECISION-MAKING
This chapter reviews prior research and writing regarding access to justice in administrative
systems, the reported experiences of tribunal users, the use in tribunal systems of structured
decision-making and the ways in which tribunals deal with self-represented parties. The essential
components of adversarial and inquisitorial models are identified and discussed.
4.1 Access to Justice
Access to justice is a relatively new concern in administrative law systems,
450
and one of its
themes is that tribunal reform has been known to complicate tribunal processes by making them
more court-like. The risk of tribunals becoming “over-judicialized” has been attributed to the
“due process explosion”
451
that began with the adoption of the Statutory Powers Procedure
Act
452
(“SPPA”) in 1966 and is thought to have intensified as a result of efforts to keep up with
“progressive developments” in court systems, such as multiple layers of case management. It has
been observed that tribunals tend to defensively overreact to criticism by adopting more court-
like processes.
453
In striking parallel with what has occurred in court systems, there is now a
concern that some tribunal processes may become so expensive and alienating as to result in
settlements primarily motivated by a desire to avoid the dispute resolution process.
454
450
Lorne Sossin, “Access to Administrative Justice and Other Worries” (2007) online,
http://www.law.utoronto.ca/documents/conferences/adminjustice08_Sossin.pdf
451
Law Reform Commission of Saskatchewan, “Appeals from the Exercise of Statutory Powers of Discretion,
Final Report” (March 2012), online:
http://lawreformcommission.sk.ca/Appeals_from_Statutory_Decisions_Final_Report.pdf
452
Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”).
453
David Mullan, “Tribunals Imitating Courts - Foolish Flattery or Sound Policy?” (Spring, 2005), 28
Dalhousie L.J. 1.
454
Ibid. [Mullan, Tribunals Imitating Courts]
111
It has been suggested that administrative law systems may counter over-judicialization by
offering a variety of hearing models, “ranging from the formal process characterized by close
proximity to criminal and civil trials…through conference hearings, summary adjudicative
hearings, and emergency hearings,”
455
as there may be points between mediation and full
adjudication at which innovative processes can be developed.
456
The empirical research for this
project indicates that in some of the tribunals studied, this is, in fact, what has occurred.
The accessibility of a justice system is, of course, ultimately a question for its users. Within the
limits of this project, accessibility is gauged through the reported experiences of adjudicators in
dealing with self-represented litigants. As noted above, the experience of tribunal users is a vital
topic for further research.
4.2 Self-Represented Litigants
455
Ibid. [Mullan, Tribunals Imitating Courts]
456
David J. Mullan, The View from North America: A Canadian Perspective on Three Troubling Issues,
(2004) 17 Can. J. Admin. L. & Prac. 167.
It is December, close to the holidays. The tenant is behind in her rent payments
and the landlord’s representative is seeking an eviction.
The tenant, a woman seemingly in her thirties, talks about her three children and
needing to buy them Christmas presents. She has no representative and appears to
have no legal argument and no plan other than appealing to the sympathy of the
adjudicator.
The adjudicator explains that he cannot order a landlord to become a tenant’s
creditor and issues an eviction order. The tenant leaves the hearing room in tears.
A man dressed in a suit, who appears to be a lawyer seated with his clients,
follows the just-evicted tenant out of the hearing room. From a distance I hear
him assure her that there is a service to which she can apply for immediate
assistance in paying the overdue rent.
112
The National Survey of Tribunal Responsiveness to Self-Represented Parties– Measuring Access
to Justice for Canadian Administrative Tribunals
457
reports upon the results of a quantitative
study of Canadian adjudicative tribunals in which service to self-represented parties was
assessed. The study calculates national and regional “baselines” and provides various
“comparative indices,” including a national average score (or “national index”) that gauges
responsiveness to self-represented litigants. The national index is reported as 62%, which was
interpreted as suggesting room for improvement. Identified areas of weakness include hearing
planning and preparation, mid-range capability was reported with respect to information-related
services, public education and case management, and reported strengths include dealing with
language issues, timeliness, and hearings. The study concludes that tribunals with a higher
prevalence of self-represented parties had a lower focus on the needs of self-represented parties;
this unlikely result was attributed to several possible factors, including high volumes of work in
tribunals with large numbers of self-represented parties which may have hindered the
implementation of systemic access to justice measures, or conversely, to these tribunals having
developed a culture so well-adapted to working with self-represented parties that strategies for
dealing with them are less obvious and were therefore under-reported.
458
Survey criteria will be
refined in follow-up studies; the current recommendation is that strategies for improvement be
developed on a tribunal-specific basis due to the variable needs of self-represented parties across
different tribunal systems.
457
Lillian Ma, Anthanasios Hadjis, Garry Yee, Marilyn McNamara and Taivi Lobu, sponsored by the Council
of Canadian Administrative Tribunals, “The National Survey of Tribunal Responsiveness to Self-Represented
Parties– Measuring Access to Justice for Canadian Administrative Tribunals” (2016), 29 Can. J. Admin. L. &
Prac. 165.
458
Ibid., at pages 169-170. [Ma et al.]
113
The 2006 Genn Report,
459
which is the product of a study of select tribunals in the United
Kingdom, reports upon a survey of tribunal users, and includes a statistical analysis of tribunal
decisions, as well as findings on access to tribunal justice, public perception of tribunals, and
reported user experiences of tribunal proceedings. This study found that approximately half of
tribunal participants were self-represented and had generally positive assessments of their
experiences. Nonetheless, the study found that self-represented parties were less likely to
succeed, and representation was generally regarded as valuable. Despite the positive reports of
tribunal users, the study concluded that in some cases representation maybe crucial to procedural
and substantive fairness. The study examined tribunal users’ perceptions of fairness, such as how
comfortable parties felt during hearings, how well they understood procedures and questioning,
the extent to which they believed they were given an opportunity to participate, whether they felt
understood and whether adjudicators listened equally to what they and others had to say.
460
The
study reported positive findings in the range of seventy to ninety percent in all of these areas.
With respect to representation by counsel, it states:
Perhaps somewhat surprisingly, representation appeared to have little effect and users
said that they had felt comfortable in the tribunal. Some 69% of represented users and
72% of unrepresented users when questioned after the end of the hearing said that they
had felt comfortable during the hearing.
461
The demand for tribunal services, and their popularity among policy-makers has reportedly
grown in step with the burgeoning self-represented litigant population and its increasing
diversity:
459
The Genn Report examined the Appeals Service (TAS) Criminal Injury Compensation Appeals Panels
(CICAP) and Special Education Needs and Disability Tribunals (Sendist).
460
Genn, Hazel; Lever, Ben; and Gray, Lauren, “Tribunals for Diverse Users” (UK: Research Unit,
Department for Constitutional Affairs, Justice Rights and Democracy, 2006) at page 44. online:
http://www.dca.gov.uk/research/2006/01_2006.pdf
461
Ibid., at page 215. [Genn, Tribunals for Diverse Users]
114
Individuals are looking to these tribunals as simpler and more economical avenues to
review administrative decision making and to resolve their disputes, free from the many
formal trappings of the law courts – a trend which is likely to continue as the cost of
access grows as a concern, not only for socially and economically disadvantaged
individuals but also for the politically significant middle class.
462
As noted above, the user experience is a critical aspect of tribunal functioning that is
recommended as a subject of further study.
4.3 Soft Law and Structured Decision-Making
Fairness and predictability are woven into the idea of the rule of law in the context of
administrative discretion and its aversion to arbitrary decision-making.
463
In interviews conducted for this project it was frequently remarked that decision-making
guidelines for an adjudicative tribunal would be an illegitimate fetter upon discretion. Given that
guidelines are most controversial in the context of administrative adjudicative tribunals, the
category into which a custody and access tribunal would fall, the rationale for guidelines, their
potential uses, and their sources of legitimacy are discussed in some detail.
A legislature may articulate binding decision-making guidelines in a tribunal’s enabling statute,
or it may give a tribunal authority to issue binding guidelines. In the absence of this authority a
tribunal may still generate non-binding guidelines, a form of “soft law.”
464
Houle and Sossin
462
Lorne Sossin and Jamie Baxter, “Ontario’s Administrative Tribunal Clusters: A Glass Half-Full or Half-
Empty for Administrative Justice?” (2012), 12 Oxford U. Commw. L.J. 157 at page 10.
463
France Houle and Lorne Sossin, “Tribunals and Guidelines: Exploring the Relationships between Fairness
and Legitimacy in Administrative Decision-Making” (2006), 46 Canadian Public Administration 282.
464
Ibid., at page 287. [Sossin and Houle] Soft law refers to non-legislative instruments intended to guide
decision-making, and includes non-binding “policy guidelines, technical manuals, rules, codes, operational
memoranda, training materials, enter interpretive bulletins, or even oral directions” see infra, footnote 482 at
page 466-467. [Sossin, Discretion unbound]
115
identify three ways in which tribunal-generated guidelines may be utilized: to complete the legal
order, develop the legal order, or remodel the legal order. Developing the legal order means to
adopt specific interpretations of the law a tribunal it is charged with applying, tied to certain
circumstances, with or without a specific mandate.
465
Guidelines of this sort can clarify, expound
upon and communicate the framework for tribunal decision-making,
466
and enhance consistency,
accountability, transparency and fairness.
467
In my view, this is the guideline function that would
be most useful for a family law tribunal.
The legitimacy of guidelines is dependent upon several factors, including: the scope of a
tribunal’s policy-making function, the extent to which it is appropriate for consistency to be
encouraged, independence and accountability concerns, and Charter compliance.
(a) Policy-Making
Policymaking - the reconciliation and elaboration of lofty values into operational
guidelines for the daily conduct of society's business.
468
All tribunals studied for this project are administrative adjudicative tribunals. According to first
principles, administrative regulatory tribunals have a policymaking role (suggesting they may
develop soft law) whereas adjudicative tribunals have a policy implementing role (suggesting
they may not).
469
The extent of a tribunal’s involvement in “crafting policy” is one way of
distinguishing “quasi-executive” (more regulatory) and “quasi-judicial” (more adjudicative)
465
Ibid., at page 287. [Sossin and Houle]
466
Ibid., at page 283. [Sossin and Houle]
467
Anna Pratt and Lorne Sossin, “A Brief Introduction of the Puzzle of Discretion” (2009), 24 No. 3 Can. J. L.
& Soc. 301.
468
Colin S. Diver, “Policymaking Paradigms in Administrative Law” (1981) 95 Harv. L. Rev. 393 at page 393.
469
S. Ronald Ellis, Unjust by Design, Canada’s Administrative Justice System (Vancouver, UBC Press, 2013)
at page 226.
116
tribunals.
470
The principle at stake is that governments cannot both make law and judge its
application; an independent forum is needed in which the government perspective on its laws can
be challenged, except where law is merely applied in a regulatory way.
471
In Consolidated Bathurst,
472
the Supreme Court of Canada held that within the broad discretion
conferred upon the Ontario Labour Relations Board (an adjudicative tribunal) decision-making is
inevitably entwined with policy considerations. The Board successfully argued that, “law and
policy are to a large degree inseparable…and come to be promulgated through the form of case
by case decisions.”
473
In the same decision the Supreme Court emphasized the importance of
consistency in administrative adjudication, noting, “it is obvious that coherence in administrative
decision making must be fostered.”
474
The implication is that discretionary decision-making
itself is a form of policy-making, and the further step of consolidating these policy choices in the
form of guidelines is a legitimate exercise for administrative adjudicative tribunals; nonetheless,
the degree to which consistency should be encouraged through the use of guidelines was not
entirely clarified.
475
Administrative adjudicative decision-making is subject to contradictory imperatives: it is not
bound by precedent, but cannot disregard past tribunal decisions; it may be subject to guidance,
470
Idid. [Ellis, Unjust by Design]
471
Ibid. The example Ellis provides is that whether or not a license is issued is something that the government
can delegate to a regulatory agency, but once there is a dispute between the government and individuals (or
just between individuals) as to whether a license should or should not be issued (as occurs when a government
decision is under appeal or there is a private dispute over licensing) an independent decision-maker is required.
472
Iwa v. Consolidated Bathurst Packaging Ltd., [1990] 1 S.C.R. 282.
473
Ibid., at page 315. [Consolidated Bathurst]
474
Ibid. [Consolidated Bathurst]
475
Supra, footnote 463 at page 294. [Houle and Sossin]
117
but discretion must not be fettered.
476
While the nature of a tribunal is relevant to the need for
consistency, categorization alone does not resolve the problem of degree.
477
For example, the
tribunals studied for this project are “administrative adjudicative” in nature, yet as discussed in
detail below, a significant number of tribunal members interviewed appeared to strongly identify
with judges in court systems and reported that any decision-making guidelines would be an
inappropriate fetter upon discretion, although it was almost universally reported that consistency
with prior decisions is an important tribunal value.
(b) Independence and Accountability
Judicial independence has traditionally been defined as follows:
Historically, the generally accepted core of the principle of judicial independence has
been the complete liberty of individual judges to hear and decide the cases that come
before them: no outsider - be it government, pressure group, individual or even another
judge, should interfere, in fact, with the way in which a judge conducts his or her case
makes his or her decision.
478
[emphasis added]
Interference in tribunal decision-making by “outsiders” such as government is only problematic
in a “back-channel” sense;
479
given that a tribunal exercises a statutory power of decision,
legislation adopted in the ordinary course may constrain administrative adjudication without
triggering independence concerns. “Outsider” interference may, however, also include guidelines
generated by the tribunal itself, but only if they constrain the discretion of decision-makers to the
extent of compromising independence and impartiality.
480
Therefore, non-binding guidelines
476
Ibid., at page 294. [Houle and Sossin]
477
Ibid. [Houle and Sossin]
478
Supra, footnote 472 at page 332. [Consolidated Bathurst]
479
Supra, footnote 48 at page 6. [Sossin, Independence, Accountability]
480
Supra, footnote 463. [Houle and Sossin]
118
may not contain language that suggests they are binding, or otherwise interfere with an
adjudicator’s consideration of the facts in individual cases, or freedom to exercise judgment.
481
The legal legitimacy of guidelines is assessed in the course of judicial review cases in which they
have been applied, and subsequently challenged through the ultra vires doctrine.
482
If guidelines
tread beyond the scope of delegated authority they are outside a tribunal’s jurisdiction, as is any
individual decision that exceeds the scope of delegated authority, due, for example, to an
adjudicator considering irrelevant evidence, acting for an improper purpose, or deciding on an
unprincipled basis or in bad faith. In this framework, guidelines unduly fetter discretion if they
go beyond indicating the appropriate scope for tribunal decisions or providing a framework for
decision making; they may illustrate reasonable interpretations of the tribunal’s powers but may
not provide mandatory answers or solutions.
Finally, guidelines may be problematic in that granting a tribunal authority to develop guidelines
may inadvertently give significant power to officials who are not subject to any meaningful
measure of political accountability.
483
It has been suggested that political accountability can be
addressed through transparency, achieved by making guidelines publicly available and seeking
input from members of the constituent community as part of an open policy development
process.
484
Broad-based input in the development of guidelines reflects a “bottom-up” approach
481
Supra, footnote 450 at page 8. [Sossin, Access to Administrative Justice]
482
Lorne Sossin, “Discretion unbound: Reconciling the Charter and soft law” (2003) 45(4) Can. Pub. Admin.
465.
483
Supra, footnote 463 at page 304. [Houle and Sossin]
484
Lorne Sossin and Charles W. Smith, “Politics of Transparency and Independence Before Administrative
Boards” (2012), 75 Sask. L. Rev. 13 at paragraph 77.
119
to norm production,
485
which similarly occurs when tribunals communicate input on policy
matters to the executive branch.
486
The technology-driven demand for greater transparency in
many fields has intensified the potential for this form of policy-making, and a “collaborative
governance” model, which is consistent with New Governance Theory, has been suggested as a
replacement for the traditional “command and control” approach to policy-making. In a
collaborative governance model, the “policy process” is informed by broad-based community
participation in identifying approaches to issues and expanding the range of options for dealing
with them, utilizing an array of methods of public engagement, both in-person and online.
487
(c) Charter Compliance
The constitutionality of guidelines can only be assessed in individual cases in which the Charter
is invoked upon review.
488
It has been suggested that the caselaw offers lessons for the
development of guidelines: first, a guideline that is constitutional on its face may, in its
application, offend the equality rights contained in section 15 of the Charter and second, a grant
of broad discretion with little guidance as to its application may fail to protect against “arbitrary
conduct” as required by section 7 of the Charter.
489
In short, guidelines intended to be non-
binding must be non-binding on their face and in their application, and in their application they
must not deny equal treatment or enable arbitrary conduct.
485
Supra, footnote 463 at page 284. [Houle and Sossin]
486
Supra, footnote 484. [Sossin and Smith]
487
Lisa Blomgren, “The Next Generation of Administrative Law: Building the Legal Infrastructure for
Collaborative Governance” (2010), Wis. L. Rev. 297 at page 300; see also supra footnote 57 at page 88.
[Nourse and Shaffer]
488
Supra, footnote 482. [Sossin, Discretion unbound]
489
Supra, footnote 463 at page 304. [Houle and Sossin]
120
It is one of the many complexities of administrative law that guidelines may be variously
interpreted as enhancing or detracting from the legitimate exercise of a tribunal mandate. In the
result, a range of considerations must inform the development and implementation of guidelines,
but the administrative adjudicative nature of a tribunal does not, contrary to the views expressed
in interviews for this project, indicate that guidelines per se are an inappropriate fetter upon
adjudicator discretion.
4.4 Less Adversarial Processes
The landlord has obtained an order evicting a tenant for marijuana use. The
tenant has applied for leave to review an eviction order. Leave is granted by the
Vice-Chair and the review hearing commences immediately thereafter.
It is a comfortable and well-appointed hearing room, and the lighting is soft.
The parties testify from counsel tables, rather than “taking the stand.” Both
parties are represented. The tenant, a soft-spoken man seemingly in early middle
age, is guided through his testimony, which discloses that he waited almost 9
years for his subsidized apartment, is on ODSP with an income of $777 per
month, suffers from schizophrenia, and has a 16-year-old daughter. He further
testifies that at an earlier time he was homeless and lived in a bus terminal, and
he has nowhere to go if his tenancy is terminated; his mental health has
improved since moving into the subsidized apartment, which has allowed him to
spend more time with his daughter. His evidence is given in a straightforward
manner, without self-pity. He makes concessions against interest without
hedging.
During cross-examination the tenant answers more slowly and takes on a dazed
look, becoming confused over details of dates and locations. The adjudicator
takes notes throughout his testimony. Landlord’s counsel is attempting to
establish that the tenant could find another place to live. The adjudicator
interjects to ask whether the landlord concedes that the tenant would lose his
rent subsidy if the tenancy is terminated, and landlord’s counsel indicates he
does not know. The adjudicator says she thinks this is so. Tenant’s counsel says
he believes the subsidy will be lost. The adjudicator asks the tenant if he believes
he can find another place without losing his subsidy, whether it would be
reasonable to adjourn for a month to let him look. It is a discussion led by the
121
While tribunal process design is highly varied, unless the enabling legislation provides
otherwise, all Ontario tribunals that hold hearings must follow procedures mandated by the
SPPA,
490
which are meant to protect certain rights: to notice of proceedings, to know the case to
be met, to representation, to conduct cross-examination of witnesses, and to be provided with
reasons for decisions. Within this framework, section 25.0.1 of the SPPA provides that tribunals
are free to develop detailed procedural rules to allow for flexibility, innovation and informality,
provided that the appropriate standard for fairness is met.
491
Therefore, within the limits of the
490
Supra, footnote 452. [SPPA]
491
Sara Blake, Administrative Law in Canada, 4th Edition (Toronto: LexisNexis Butterworths, 2006).
adjudicator, in which each side speaks to alternative remedies. The
adjudicator’s manner is matter-of-fact, without a hint of condescension. She is
both supportive of the landlord’s zero tolerance drug policy and sensitive to the
tenant’s obvious vulnerability.
The adjudicator states, as if it is a proven fact, that the tenant will be devastated
if, after a nine-year wait, he loses the apartment over a single incident. She
indicates that the member who made the eviction order considered (but did not
make) a conditional order based upon the tenant’s ability to transfer the rent
subsidy. She suggests another option: a conditional order reinstating the tenancy
on the condition that there is no further marijuana use on the premises and
providing for automatic termination of the tenancy if the order is breached.
The atmosphere in the room is almost intimate. The tenant’s difficult
circumstances have been discussed quietly and respectfully. Although extremely
soft-spoken, the tenant is not asked to speak up. Questioning by landlord's
counsel was purposeful but not harsh. The adjudicator’s approach was a
problem solving one, in which all of the participants seemed comfortable and
invested.
The adjudicator reserves her final decision to consider a procedural matter,
saying that if it is not a fatal flaw she will write a conditional order allowing the
tenant to stay provided there are no further incidents of drug use. The appeal
was filed on October 8 and heard on October 20. The hearing lasted about 45
minutes.
122
natural justice requirement of fairness, a tribunal is empowered to tailor its decision-making
processes to its mandate and clientele. This power is echoed in the Social Justice Tribunals
Ontario Common Rules,
492
applicable to all of the tribunals studied here, in which it is stated that
the rules and procedures of a tribunal shall be “liberally and purposively interpreted and applied
to promote the fair, just and expeditious resolution of disputes” and to “allow parties to
participate effectively in the process whether or not they have a representative.”
493
[emphasis
added] The Rules further provide that “a tribunal may vary or waive the application of any rule
or procedure, on its own initiative or on the request of a party, except where to do so is
prohibited by legislation or a specific rule.”
494
(a) Hybrid Models
Hybrid systems have been described as the “new normal” in administrative justice,
495
and in
family justice systems they have been defined as “those that combine efforts to bring about
consensual dispute resolution with efforts to identify and impose a just resolution.”
496
Hybrid
adjudication systems can be considered as points on a continuum between adversarial and
inquisitorial models
497
or as existing on a continuum between adversarial and non-adversarial
processes.
498
This is important to keep in mind, as “inquisitorial” and “non-adversarial” do not
492
Social Justice Tribunals Ontario Common Rules, online: http://www.sjto.gov.
on.ca/documents/sjto/Common%20Rules%20of%20Procedure.html
493
Ibid., Rule A3.1.
494
Ibid., Rule A4.2.
495
Samantha Green and Lorne Sossin, “Administrative Justice and Innovation: Beyond the
Adersarial/Inquisitorial Dichotomy” in The Nature of Inquisitorial Processes in Adversarial Regimes, supra,
footnote 281 at page 71. 272
496
Supra, footnote 40 at page 48. [Semple and Bala, Reforming the Family Justice System]
497
Robin Creyke, “Pragmatism v. Policy: Attitude of Australian Courts and Tribunals to Inquisitorial Process”
in The Nature of Inquisitorial Processes in Administrative Regimes: Global Perspectives, Laverne Jacobs &
Sasha Baglay, eds., (Surrey, UK: Ashgate, 2013) at page 37.
498
Supra, footnote 23. [Family Justice Working Group Report]
123
mean the same thing. This chapter discusses hybrid systems in terms of blending adversarial and
inquisitorial elements.
As noted above, “pure” adversarial and inquisitorial paradigms are poor reflections of current
reality.
499
It has been suggested that contrasts between adversarial and inquisitorial systems have
been grossly exaggerated,
500
as European inquisitorial systems often utilize elements of
adversarial procedure
501
and only certain French administrative tribunals can accurately be
described as purely inquisitorial.
502
Despite this, as noted above, the characteristics associated
with these paradigms remain useful for distinguishing between the fundamental orientation of
different justice systems, that is, understanding their ideological starting point. It is therefore
worthwhile to consider the archetypal features of each paradigm, the strengths and weaknesses
attributed to them, and how they have endured or eroded.
As noted, the components of proceedings with inquisitorial elements vary greatly in different
forums and jurisdictions, but may include any or all of the following:
503
- claims, documents and other written materials produced by a party are
addressed to the court or tribunal, and forwarded to the responding party;
499
Supra, footnote 75 at page 3. [King, Freiberg et al.]
500
Supra, footnote 178. [Langbein]
501
Ibid. [Langbein] See also: supra, footnote 172 at page 702. [Slobogin]
502
Jean-Bernard Auby, “About the Inquisitorial Character of Administrative Litigation
Procedure in French Law” in The Nature of Inquisitorial Processes in Adversarial Regimes, supra, footnote
281 at page 113.
503
See: Supra, footnote 495 at page 74. [Sossin and Green] and infra, footnote 506. [Asimow]
124
- the judge or adjudicator is empowered to determine the facts that must be
established, and the evidence required, including witnesses and documentary
evidence;
- the tribunal may engage in independent fact-finding by requesting additional
information from the parties, calling witnesses, and/or requesting
documentary evidence;
- the decision-maker determines when the case is ready to be heard and sets the
date for hearing;
- the decision-maker is permitted to consider arguments concerning essential
aspects of the law, regardless of whether invoked by the parties;
- the judge or adjudicator is not bound by formal rules of evidence, and is
permitted to modulate the burden of proof;
- the decision-maker may help a party to prove the necessary facts, provided the
exercise is worthwhile;
- there is no cross-examination of witnesses by the parties;
- most of the evidence is in written form;
- all documentary evidence is collected in a file assembled by the decision-
maker;
- the decision-maker may be empowered to conduct or supervise an
investigation;
- there is typically an absence of legal representation; and
125
- witnesses may be restricted to answering questions only from tribunal
members, with parties having no right to question the other party or
independently address the tribunal.
The reported strengths of inquisitorial systems include: 1) ability to compensate for differences
between the parties as to resources, ability and knowledge, by allowing the decision-maker to
assist the weaker party; 2) ability to better ensure the accuracy of fact-finding or “truth-finding;”
and 3) greater efficiency and less susceptibility to strategic delay.
The foregoing list illustrates that in inquisitorial systems responsibility for important aspects of
the decision-making process is shifted from the individual to the state; it further suggests that the
extent to which many hybrid systems have been endowed with inquisitorial elements is quite
limited. Indeed, in the UK tribunals are often described as “user-friendly,” but may not assist a
party to prepare a case or to gather evidence.
504
Similarly, despite that it is a foundational
principle of administrative law in Australia that tribunals are not bound to follow adversarial
procedures, no Australian court has given unconditional support for the use of inquisitorial
processes, and among Australian tribunals expressly empowered to conduct investigations these
powers have reportedly seldom been used, although in some tribunals this is reportedly
changing.
505
Tribunals that tend to attract inquisitorial powers have some common features. First, the work of
these tribunals tends to suggest an underlying public interest, coupled with specific
504
Supra, footnote 497. [Creyke]
505
Ibid. [Creyke]
126
vulnerabilities that trigger concerns about the use of adversarial processes.
506
For example, in
Australia family courts have developed the Less Adversarial Trial, and inquisitorial elements are
permitted in refugee hearings; the latter has been attributed to the perceived public interest in
proper and consistent implementation of immigration policies, the vulnerable populations
involved, and related efficiency concerns.
507
Similarly, in UK tribunals an “enabling approach”
(in which every possible assistance is provided to self-represented parties, including bringing out
relevant facts) has generally been advanced, but has been most consistently adopted where self-
represented parties face a repeat-player institutional litigant, for example, in social security
cases.
508
Lastly, in the United States, some inquisitorial methods are used in problem-solving
family courts, and for claims related to entitlement programs such as Veterans’ Benefits and
Social Security, where the perceived public interest lies in assisting highly “deserving”
claimants, and efficiency concerns are engaged by vulnerability, large caseloads and backlogs.
509
In the context of public law, Shelley Kierstead has noted that “few would argue against the
proposition that emotionally and physically healthy children are essential to a thriving
society;”
510
indeed, the documented consequences for children of high conflict separation and
divorce, and the common knowledge that these consequences can be made worse by the court
system, support a public interest in the private law sphere as well. What is more, the growing
506
Michael Asimow, “Inquisitorial Adjudication and Mass Justice in American
Administrative Law” in The Nature of Inquisitorial Processes in Adversarial Regimes, supra, footnote 281 at
page 93.
507
Gerald Heckman, “Inquisitorial Approaches to Refugee Protection Decision-making:
The Australian Experience and Possible Lessons for Canada” in The Nature of Inquisitorial Processes in
Adversarial Regimes, supra, footnote 281 at page 126.
508
Robert Thomas, “From “Adversarial v Inquisitorial” to “Active, Enabling, and Investigative:”
Developments in UK Administrative Tribunals” in The Nature of Inquisitorial Processes in Adversarial
Regimes, supra, footnote 281 at page 66.
509
Supra, footnote 506. [Asimow]
510
Supra, footnote * at page 44. [Kierstead, Therapeutic Jurisprudence]
127
population of self-represented litigants in family law disputes has clearly triggered efficiency
concerns which, paired with a public interest, further justify inquisitorial dispute resolution
processes. I argue that a system for custody and access dispute resolution (and perhaps for
“ordinary” family law cases) should fully empower adjudicators to use all available means to
assist self-represented litigants and obtain all relevant information as expeditiously as possible.
A comparison between hybrid processes and a “Star Chamber” is clearly extreme, and so too is a
stereotypical portrayal of adversarial systems, given the drift away from dogmatism on both ends
of the continuum. With this in mind, the essential components of a traditional adversarial model
include:
511
- a passive adjudicator who makes rulings as requested by counsel and rarely, if
ever, interacts directly with parties or witnesses;
- party control of the evidence (including figuring out what is needed to build a
case, how to obtain it and in what form it should be presented (that is, in
bound form, with indices and tabs) and providing this material to the opposite
party and to the court in accordance with deadlines;
- no “independent fact-finding” on the part of the decision-making body (all
findings must be based upon the parties’ evidence);
- complex rules of evidence;
- party responsibility for presenting all evidence to the court in a manner
consistent with procedural norms, including opening statements, giving
testimony, examining and cross-examining witnesses, making appropriate
511
Supra, footnote 495 at page 73. [Sossin and Green]
128
objections, responding to the opposing party’s objections, properly filing
documentary evidence in the form of exhibits, qualifying expert witnesses and
challenging the qualification of the opposing party’s expert witnesses, and
making closing statements;
- party responsibility for pretrial processes, including case conferences,
settlement conferences, and trial management conferences, all of which
involve preparation and filing of documents with the court and the opposing
party, and the same with respect to any interim motions; and
- an emphasis on “winning” such that a favourable outcome is typically valued
more than a decision considered correct by reference to some external
standard.
The endurance of the adversarial model has been attributed to a tendency to regard existing law
and legal systems as “inevitable,” otherwise known as “path dependence” or, more harshly, as a
“paralysis inducing” mind-set.
512
An alternative (or compounding) explanation is ignorance on
the part of the public as to the real alternatives presented by inquisitorial-based approaches to
justice.
It is trite, but worth noting, that traditional adversarial processes have been glamourized in
American popular culture (Inherit the Wind, To Kill a Mockingbird…more recently, The People
v. O.J. Simpson) and in the United Kingdom the archaic symbolism of adversarial justice is
famously rich and remains largely in place. As “path dependence” suggests, adversarial systems
512
Supra, footnote 33 at page 607. [Dagan]
129
tend to be equated to “fairness” in cultures in which they are the traditional form of justice.
Indeed, it seems likely that even those with no substantial knowledge of legal systems are able to
articulate the symbolic meaning of the blindfolded maiden grasping the scales of justice. The
result is a perception, even in the minds of self-represented litigants who are disadvantaged by
adversarial systems, is that justice depends upon combative and performative process.
The public perception of the relative “fairness” of adversarial processes is, in my view,
confounding; indeed, a recent study indicates only fourteen percent of the American public have
extreme confidence in lawyers, whereas thirty-two percent have extreme confidence in judges.
513
The study notes that it is difficult to reconcile a finding of more public confidence in judges than
lawyers with public faith in adversarial systems, in which lawyers have more control than
judges.
514
In my view, the fact that parties, through their lawyers, control adversarial processes is
likely not well understood by most people, who may well assume that judges are in charge of
everything.
It is a question for further research whether, to the extent that there is a public preference for
adversarial systems, it stems from cultural conditioning and ignorance of alternatives, discussed
earlier, obliviousness to the fact that adversarial systems only work well when there is some
semblance of equality between the skills and resources on either side, a combination of these
factors, or something else altogether. Perhaps research subjects, particularly self-represented
litigants, who are informed of the potential for modified inquisitorial processes to “level the
playing field” would express different preferences. Finally, the strength of the adversarial model
513
Supra, footnote 506. [Asimow]
514
Ibid., at page 94. [Asimow]
130
has been attributed to the use of an adversarial court process in judicial review of administrative
proceedings – encouraging the view that adversarial procedures are more authoritative, or even
“more correct.”
515
Encouragement for the use of inquisitorial elements in some types of adjudication can be seen in
the “Pinto Report,” discussed below with reference to the Human Rights Tribunal of Ontario,
and the Family Justice Working Group Report, which recommends exploring the use of
inquisitorial or “modified inquisitorial models” for family law and suggests a pilot project to
evaluate the use of such models in Canada.
516
Many hybrid inquisitorial-based systems use
elements of adversarial civil procedure; for example it has been observed that the German justice
system (which reportedly inspired the Australian LAT) was designed to avoid “the worst
excesses” of the adversarial model; toward that end it has eliminated strictly partisan fact-
finding, partisan experts, and coached witnesses.
517
Others have noted that “suppressing facts,”
using “tricks and surprises,” and “manipulating fact-finders”
518
also require elimination.
519
The
point is that reportedly effective reforms have been aimed at cabining (but not eliminating)
adversarial processes.
Working examples of the convergence of adversarial and inquisitorial models include the
tribunals studied for project, and more prominently perhaps, the Canadian Immigration and
Refugee Board (“IRB”). The IRB adopted an inquisitorial element by issuing “Guideline 7”
515
Supra, footnote 497. [Creyke]
516
Supra, footnote 23 at page 9. [Family Justice Working Group Report]
517
Supra, footnote 178 at page 842. [Langbein]
518
Supra, footnote 179 at page 912. [Findley]
519
Supra, footnote 170 at page 6. [Menkel-Meadow]
131
pursuant to Board authority under the Immigration and Refugee Protection Act to “issue
guidelines…to assist members in carrying out their duties.”
520
Guideline 7 allows adjudicators to
question claimants in advance of counsel; the Board claimed that Guideline 7 was needed to
curtail rambling examinations in chief,
521
(an efficiency concern). Although the Federal Court of
Appeal in Thamotharem v. Canada (Minister of Citizenship & Immigration
522
found that
Guideline 7 fettered discretion by being, in effect, mandatory, the Court otherwise supported a
“pseudo-inquisitorial role” for IRB members, specifically noting it did not imply less fairness.
Thamotharem illustrates that inquisitorial innovations extend beyond active adjudication and
other hearing room strategies, and include hearing, pre-hearing and intake processes designed to
make tribunals more manageable (consistent with the most pressing needs of self-represented
litigants identified in the White Paper),
523
which include assistance with forms, and plain
language information and education.
524
Hybrid processes may include simplified application
processes, clear tribunal rules, and tribunal suggestions as to available claims and potential
witnesses or other evidence. Finally, in administrative law systems hybrid processes are
generally authorized under the principle that tribunals are “masters in their own house;”
525
as
noted earlier, they are empowered to design their own processes within the bounds of their
enabling statute and regulations, the SPPA, if applicable, and rules of fairness and natural justice.
520
See Chairperson’s Guidelines, Guideline 7, Immigration and Refugee Board of Canada, website: irb-
cisr.gc.ca., issued pursuant to subsection 159(1)(h) of the Immigration and Refugee Protection Act.
521
Supra, footnote 491 at page 7. [Blake - Administrative Law]
522
Thamotharem v. Canada (Minister of Citizenship & Immigration), 2006 FC 16, [2006] 3 F.C.R. 168,
See also Charkaoui v. Canada, [2007] 1 S.C.R. 350 at para. 50.
523
Supra, footnote 91 at page 17. [Farrow et al., White Paper]
524
Ibid., at page 17. [Farrow et al., White Paper]
525
Prassad v. Canada [1989] 1 S.C.R. 560.
132
(b) Active Adjudication
I’d like to thank you for losing this case for me.
Any other questions, your Honour?
Active adjudication is controversial, despite that it is not newly invented, nor exclusive to
tribunals. Indeed, before a deluge of self-represented litigants expanded the rationale for active
adjudication processes, Owen Fiss described the role of judges in court processes as follows:
Of course, imbalances of power can distort judgment as well: Resources influence the
quality of presentation, which in turn has an important bearing on who wins and the terms
of victory. We count, however, “on the guiding presence of the judge, who can employ a
number of measures to lessen the impact of distributional inequalities.” He can, for
example, supplement the parties' presentations by asking questions, calling his own
witnesses, and inviting other persons and institutions to participate as amici.
526
The decision-making environment described by Fiss is not an uncontested vision; the level of
assistance considered appropriate to assist self-represented (or under-represented) parties varies
from merely providing information about basic procedure to substantial assistance to “lessen the
impact of distributional inequalities” as Fiss suggests, that is, levelling the playing field.
Michelle Flaherty defines active adjudication as a component of adversarial proceedings
whereby the adjudicator may provide guidance and direction as to how the hearing will be
conducted , and may assist the parties by explaining procedural steps, raising jurisdictional issues
adopting a flexible approach to the rules of evidence and procedure, but may not provide legal
advice or take on the role of representative.
527
The issue in active adjudication is how active, and
the obvious concern is apprehension of bias, which as noted above, appears to require re-
examination in the self-represented litigant era.
526
Supra, footnote 280 at page 1077. [Fiss]
527
Michelle Flaherty, “Best Practices in Active Adjudication” (2015), 28 Can. J. Admin. L. & Prac. 291 at
page 2. (Westlaw).
133
According to administrative law scholars, administrative proceedings are generally more
flexible, expeditious and informal than court proceedings, and relatively intense engagement
with the parties is generally more acceptable in tribunals than in non-inquisitorial courts; indeed,
it has been asserted that the flexibility of administrative law under a Baker analysis supports
“adjudicator activism” in some contexts.
528
Conference materials prepared by the Society of
Ontario Adjudicators (SOAR)
529
list the benefits of active adjudication processes as including:
shortening hearings, improving understanding of the issues, improving decision-making,
enhancing efficiency by allowing adjudicators to exercise greater control over proceedings,
improving access to justice; improving proportionality by enabling processes to be tailored to the
nature of the parties and the dispute, and facilitating decision writing. These materials further cite
the need to balance these benefits with “fairness and avoiding any appearance of bias, pre-
judgment, or descent into the arena and… the dust of conflict.”
530
Indeed, the most controversial
active adjudication technique is direct questioning of witnesses, or interfering in questioning,
especially on cross-examination. The SOAR conference materials assert that it is permissible for
an adjudicator to put questions to a witness that should have been asked by counsel, in order to
bring out some relevant matter, or to explore an area that a witness’ answers have left vague, or
to clear up ambiguities; they also assert that cross-examination, usurping the role of counsel,
“excessive questioning,” and “not believing witnesses” must be avoided.
531
The space for
528
Freya Kristjanson and Sharon Naipul, “Active Adjudication or Entering the Arena – How Much is Too
Much?” (2011), 24 Can. J. Admin. L. & Prac. 201 at page 5. (Westlaw)
529
Jeff Cowan and Jill Doherty, “Active Adjudication and Civility” (November 7, 2013), Society of Ontario
Adjudicators Annual Conference Materials online: https://soar.on.ca/node/262
530
Ibid. [Cowan and Doherty]
531
Ibid. [Cowan and Doherty]
134
confusion is vast, given that the permitted scope of questioning could serve as a partial definition
of cross-examination.
(c) Apprehension of Bias
The natural tension between active adjudication and traditional notions of impartiality illustrates
the obvious fact that active adjudication techniques are incompatible with adversarial norms,
upon which court-system conceptions of bias are naturally based.
532
As noted above, increased
use of active adjudication has occurred in step with burgeoning numbers of self-represented
litigants, who also do not have a natural place in the adversarial paradigm. Indeed, active
adjudication is seemingly the essence of a moderate inquisitorial model, and according to
inquisitorial ideology and norms it enhances fairness and natural justice.
533
The adoption of active adjudication as an element of otherwise adversarial systems engenders
debate as to how this authority can be utilized so as not to breach adversarial norms – a difficult
line to draw because, as noted, active adjudication by definition contradicts adversarial norms.
Suggested limitations on the use of active adjudication, to reconcile it with an adversarial
framework, include: a general principle that judges and adjudicators are permitted to intervene
by clarifying evidence, curtailing the evidence on matters at issue, avoiding irrelevant or
repetitive evidence, dispensing with proof of obvious or agreed matters, and ensuring that
witnesses answer questions in a way that does not unduly hamper progress of the matter;
534
and
defining “over-intervention” as undue interference in the presentation of a case, particularly in
532
See: Supra, footnote 608. [Children’s Aid Society of the United Counties of Stormont, Dundas and
Glengarry v. S.V.D.]
533
Supra, footnote 453. [Mullan, Tribunals Imitating Courts]
534
Supra, footnote 528 at page 202. [Kristjanson and Naipul]
135
questioning witnesses, commenting on evidence, or appearing to have pre-judged issues of fact
and credibility,
535
including, more specifically: “sarcasm, discourtesy, disparaging remarks,
being confrontational, making procedural or other rulings without receiving submissions or
evidence from one of the parties, and making findings credibility (or making comments that
suggest a finding of credibility has been made) mid-hearing.”
536
In administrative adjudication
that is built on an adversarial foundation, these limitations apply to ensure that proceedings are
not conducted in a manner that suggests impartiality, gauged in accordance with the same test
applied to judges in court systems, and derived from the same jurisprudence,
537
but with the
proviso that the interpretation of bias depends upon a Baker analysis of the requirements of
procedural fairness in the context of each case.
The connection between adversarial norms and the interpretation of bias can be seen in the
following passage, recently quoted in a judicial review case in which it was successfully argued
that the limits upon active adjudication had been exceeded:
A judge who observes the demeanor of the witnesses while they are being examined by
counsel has from his detached position a much more favorable opportunity of forming a
just appreciation than a judge who himself conducts the examination. If he takes the latter
course he, so to speak, descends into the arena and is liable to have his vision clouded by
the dust of the conflict. Unconsciously he deprives himself of the advantage of calm and
dispassionate observation.
538
The struggle to reconcile adversarial norms and adjudicator activism is also occurring in courts,
and is demonstrated by the following passage from a recent Supreme Court of Canada decision:
Judges are no longer required to be as passive as they once were; to be what I call sphinx
judges. We now not only accept that a judge may intervene in the adversarial debate, but
535
Ibid. [Kristjanson and Naipul]
536
Supra, footnote 527 at page 298. [Flaherty, Best Practices]
537
Supra, footnote 528 at page 208. [Kristjanson and Naipul]
538
Yuill v. Yuill [1945] 1 All E.R. 183 (C.A.) at p. 189.
136
also believe that it is sometimes essential for him to do so for justice in fact to be
done…
539
The need to re-consider the boundaries of impartiality in administrative decision-making has
attracted discussion in the literature, including a recent suggestion that a standard of “substantive
impartiality” is emerging.
540
As I have argued in another paper,
541
there are a number of
foundations upon which the development of a more nuanced standard for impartiality in tribunal
proceedings might rest.
First, the existing test for reasonable apprehension of bias, derived from the dissenting opinion of
de Grandpre, J. in Committee for Justice and Liberty v. Canada (National Energy Board,
542
is
contextual, and therefore adaptable to hybrid models of adjudication. The apprehension of bias
test was articulated in Liberty as follows:
…the apprehension of bias must be a reasonable one, held by reasonable and right
minded persons, applying themselves to the question and obtaining thereon the required
information. In the words of the Court of Appeal the test is “what would and informed
person, viewing the matter realistically and practically – and having thought the matter
through – conclude. Would he think that it is more likely than not that [the decision
maker], whether consciously or unconsciously, would not decide fairly.”
543
Second, the case law, beginning with Baker v. Canada (Minister of Citizenship and
Immigration),
544
has reinforced that the Liberty test for apprehension of bias it is flexible,
variable and contextual. What is more, the court in Baker held that the duty of fairness requires
539
Yukon Francophone School Board, Education Area Number 23 v. Yukon Attorney General [2015] 2 S.C.R.
282 at para. 27 at para. 27 quoting Lamer, J. in Brouillard v. The Queen [1985] 1 S.C.R. 39.
540
Michelle Flaherty, “Self-Represented Litigants: A Sea Change in Adjudication” (2013) Ottawa Faculty of
Law Working Paper No. 2013-07 online: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2348708
541
Patricia L. Robinson, “Uneven Treatment of Fairness: Children's Aid Society of the United Counties of
Stormont, Dundas and Glengarry v. S.V.D” (2017), 47Advoc. Q. (2) 210.
542
Committee for Justice and Liberty v. Canada (National Energy Board, [1978] 1 S.C.R. 369.
543
Ibid., at page at 394. [Liberty v. Canada]
544
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
137
administrative decisions to be made “using a fair, impartial, and open process, appropriate to the
statutory, institutional and social context of the decision,”
545
and the content of the duty of
fairness is to be determined “in the specific context of each case.”
546
[my emphasis] The
Supreme Court of Canada in Wewaykum Indian Band v. Canada
547
again emphasized the
importance of context, writing: “[t]his is a corner of the law in which the context, and the
particular circumstances, are of supreme importance …There are no shortcuts,”
548
and the same
point was literally underlined by the Court in Yukon Francophone School Board, Education Area
Number 23 v. Yukon Attorney General:
549
…allegations of perceived judicial bias will generally not succeed unless the impugned
conduct, taken in context, truly demonstrates a sound basis for perceiving that a particular
determination has been made on the basis of prejudice or generalizations. One overriding
principle that arises from these cases is that the impugned comments or other conduct
must not be looked at in isolation. Rather, it must be considered in the context of the
circumstances, and in light of the whole proceeding.
550
[underlining in the original]
The connection between the context of decision-making and the requirements of procedural
fairness is evidenced by yet another continuum, in this instance between the different types of
tribunal and their attendant procedural requirements. In broad terms, “quasi-judicial” decision-
545
Ibid., at para. 28. [Baker]
546
Ibid., at para. 21 [Baker] referring to the court’s prior decision in Knight v. Indian Head School Division
No. 19 [1990] 1 S.C.R. 653 at p. 682. This requirement has repeatedly been confirmed. See, for example:
Beaverford v. Thorhild (County No. 7), 2013 ABCA 6 at para. 21. See also Canada (Attorney General) v.
Mavi, 2011 SCC 30 at paras. 41-42.
547
Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259.
548
Ibid., at para. 77. [Wewaykum]
549
Supra, footnote 311. [Yukon]
550
Ibid., at para. 26. [Yukon]
138
makers must more “court-like” procedural protections,
551
whereas investigative
552
and
Ministerial
553
decisions are subject to a relatively low standard of impartiality, as are policy or
polycentric decisions.
554
As the Supreme Court put it in Canada (Attorney General) v. Mavi,
555
fairness is not a “one-size-fits-all” doctrine.
556
To mix metaphors, “fairness” is also not a blunt
instrument. There are nuances and refinements within decision-making categories, so that mere
categorization of a decision-making function as “quasi-judicial” or a decision-making body as
“adjudicative” does not, in itself, give practical meaning to the requirements of procedural
fairness in the specific context of each case. Indeed, a nuanced contextual analysis of bias has
been applied upon judicial review of administrative “quasi-judicial” decision-making. For
example, in DeMaria v. Law Society of Saskatchewan
557
allegations of bias stemmed from the
apparently friendly relationship between Law Society counsel and certain Benchers. The court
considered a number of social and institutional factors (such as the projected mental/emotional
551
See: Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1
S.C.R. 623 at para. 27. The court noted: “It can be seen that there is a great diversity of administrative boards.
Those that are primarily adjudicative in their functions will be expected to comply with the standards
applicable to courts...Administrative boards that deal with matters of policy will be closely comparable to the
boards composed of municipal councillors. For those boards, a strict application of a reasonable apprehension
of bias test might undermine the very role which has been entrusted to them by the legislature.”
552
See: Beier v. Vermilion River (County) Subdivision and Development Appeal Board, 2009 ABCA 338
(CanLII) at para. 9.
553
See: Imperial Oil Ltd v. Quebec (Minister of the Environment), [2003] 2 SCR 624 at para. 31 in which the
court distinguished a Minister from a member of the judiciary in terms of the appearance of bias and noted that
an analysis of the content of the duty of fairness requires an examination of the statutory context as well as the
“framework within which his or her duties are carried on.” See also Beaverford v. Thorhild (County No. 7),
2013 ABCA 6 at para 22, in which the court stated: “a Minister of the Crown authorized to exercise a
discretion is not necessarily bound to proceed “like a member of the judiciary” without the interest in the case
that “would make [a judge] apparently biased in the eyes of an objective and properly informed third party.”
554
See: McFadyen v. Mining and Lands Commissioner, 2007 CanLII 54672 (ON SCDC) at para. 23; also
Kowalczyk v. Peel Access to Housing, 2005 CanLII 1082 (ON SCDC) at para. 7.
555
Supra, footnote 318. [Mavi]
556
Ibid., at para. 42.
557
DeMaria v. Law Society of Saskatchewan, [2015] SKCA 106.
139
capabilities of Benchers) and held there was no “reasonable apprehension of bias.”
558
[italics in
the original]
Third, the apprehension of bias test is objective: not only must the perception of bias be
“reasonable” in the circumstances, it must be interpreted through a “reasonable person”
construct, and this construct has often been interpreted by appellate courts in nuanced ways that
effectively expand the boundaries of impartiality. Examples include: Wewaykum Indian Band v.
Canada,
559
in which the Court imputed to the reasonable person knowledge of such social and
institutional factors as the dynamics of judicial decision-making and the nature of legal practice
in the Department of Justice, and found no reasonable perception of bias; and, R. v. S.(R.D.)
560
in
which Justices McLaughlin and L’Heureux Dube imputed to the reasonable person an
understanding of such social “realities” as the local relationship between police and racialized
communities, and again found no reasonable apprehension of bias.
Finally, as a matter of doctrine, the essence of bias is prejudgement, although there is often no
discussion in the case law as to whether the conduct in question has created an appearance of
pre-judgment. Rather, the appearance of bias appears to be treated as equivalent to the
appearance of pre-judgment. In my view, there is a meaningful distinction between these
concepts: an adjudicator who questions witnesses closely or aggressively elicits evidence may be
perceived in some contexts (and by some observers) as assisting a favoured party. In a different
context (for example, in a tribunal in which there are consistent power imbalances) another,
558
Ibid., at para. 45. [DeMaria]
559
Supra, footnote 319. [Wewaykum]
560
R. v. S. (R.D.), [1997] 3 S.C.R. 484.
140
differently informed observer may regard the same conduct as simply a skilled attempt at
obtaining information.
In sum, the argument here is that the assessment of allegations of reasonable apprehension of
bias in the context of modified adversarial proceedings invites an analysis of the nature of the
proceedings and the roles and characteristics of participants in each case, which itself can result
in a nuanced approach to impartiality, that is, the enabling of active adjudication, although such
an analysis is not always undertaken.
561
As discussed in detail below, the assessment of bias
allegations in modified inquisitorial proceedings is unrelated to the appearance neutrality, and
rests upon the more quantifiable notion of thoroughness. Moreover, active adjudication processes
are consistent with inquisitorial norms.
4.5 Multi-Disciplinary Decision-Making
The 2001 Leggatt Report,
562
which emerged out of a series of tribunal studies conducted in the
United Kingdom, noted an important advantage of tribunals is that decisions are often made
jointly by panels comprising lawyers and experts able to bring a broad range of skills to bear on
decision-making, and in Canadian administrative law a multi-disciplinary, consultative decision-
making process is considered appropriate for adjudicative tribunals.
563
561
See: Supra, footnote 608. [Children’s Aid Society of the United Counties of Stormont, Dundas and
Glengarry v. S.V.D.]
562
Andrew Leggatt, “Tribunals for Users One System, One Service, Report of The Review of Tribunals” at
page 5, online: http://webarchive.nationalarchives.gov.uk/20060725091640/http://www.tribunals-
review.org.uk/leggatthtm/leg-00.htm
563
R.E. Hawkins, “Behind Closed Doors I: The Substantive Problem – Full Boards, Consensus Tables and
Caucus Cabals” (1995), 9 Can. J. Admin. L. & Prac. 267.
141
Recent research suggests “collegial decision-making” (defined as a common interest in getting
the law right, and a willingness to listen, to persuade, and to be persuaded) generally leads to
“more principled” decisions,
564
and multiple perspectives have been demonstrated to improve
decision-making in some contexts, particularly where panel members have more diverse
backgrounds. These general conclusions reportedly depend upon a number of variables,
including: how deeply information is shared, the extent to which group members elaborate upon
shared information, whether different perspectives are integrated into a final decision, leadership
styles that may affect interpretation of the group task,
565
and “panel effects,” which refer to the
positive and negative potential for the ideologies or personal characteristics of some panel
members to influence others.
566
It has been noted in other jurisdictions that decision-making in
child welfare is increasingly seen as benefitting from a collaborative process, and the
effectiveness of team decision-making in this context depends upon “shared mental models” and
the absence of over-deference to more “senior” panel members.
567
In the context of Ontario
labour arbitration, one panel member represents workers, the other represents management and
the third is “neutral,” allowing the representative members to adjudicate from the informed
perspective of each side and act as a “sounding board.”
568
This, in my view, is suggestive of the
potential role of clinicians in the application of the best-interests-of-the-child test (in cases where
they are consulted, not empaneled); their perspective could be focussed upon the parties’
“derivative dependents,” and would be informed by knowledge of child development, best-
564
Daphna Kapeliuk, “Collegial Games: Analyzing the Effect of Panel Composition on Outcome in
Investment Arbitration” (2012), 31 Rev. Litig. 267 at page 267.
565
Supra, footnote 213. [van Ginkel et al., Group Leadership]
566
Kevin Quinn, “The Academic Study of Decision-Making on Multimember Courts” (2012), 100 Cal. L. Rev.
1493 at pages 1498-1499. See also: Kristina Klykova, “Bias in Arbitral Decision-Making” 31(2) J. Int. Arb.
289.
567
Eva Nouwen, Stephan Decuyper, Johan Put, “Team Decision-Making in Child Welfare” (2012) Children
and Youth Services Review 01972 (Belgium).
568
Supra, footnote 47 at page 148. [Arthurs, Three Faces]
142
interests-of-the-child studies and literature, and their (assumed) ability “thin-slice” family
dynamics.
569
Finally, it has been reported that panel decisions may be seen as more “accurate,”
that is, “correct” in the view of the affected community.
570
It is not suggested here that judicial decision-making in the court system is not collegial, only
that it is not based on collegiality, that is, upon a common interest in getting the law right in each
case. Having said this, I note that while the research here cannot be generalized to the tribunals
as a whole, among the members interviewed, the extent of permissible informal collaboration
with other members appeared, for some, members interviewed, to be unclear. Despite that
Consolidated Bathurst
571
signalled support for plenary meetings,
572
other recent studies and
commentary confirm uneven use of multi-disciplinary expertise in tribunal adjudication, noting
that despite the legitimizing function of expertise at the creation stage of tribunals, expertise is
sometimes isolated from decision-making in order to avoid over-stepping the limits of
permissible internal interactions and thereby compromising the independence of decision-
makers.
573
4.6 Evidence
Depending upon the issue in dispute, the standard for admissibility of evidence in a tribunal may
simply be relevance, although other rules of evidence may be applied to determine weight.
574
569
Malcolm Gladwell, Blink (Little Brown and Company, 2005)
570
Supra, footnote 566 at page 1501. [Quinn]
571
Supra, footnote 472. [Consolidated Bathurst]
572
Supra, footnote 463. [Sossin and Houle]
573
Laverne Jacobs, “Reconciling Tribunal Independence and Expertise - Empirical Observations, The Future
of Administrative Justice” (January 17-18, 2008), University of Toronto, Faculty of Law Symposium at page
2.
574
Supra, footnote 491 at pages 57-61. [Blake - Administrative Law]
143
This approach obviously simplifies hearings as it takes a highly technical aspect of the law out of
the scope of the parties’ concern. Again, depending upon the issue, relevant studies and reports
may be used as evidence in tribunal proceedings without the support of an expert witness, and
accepted facts within a tribunal’s specialized knowledge may be used to inform decision-making
without the restrictions associated with “judicial notice.”
575
For administrative bodies with
specialized expertise, the concept of judicial notice has been expanded to a concept of “official
notice,” which permits reliance upon opinions and assumptions generated by the administrative
body that have not been introduced in evidence, as long as they are not inconsistent with the
evidence presented.
576
The potential in tribunals for innovative approaches to the problem of competing experts is
illustrated by the Australian Administrative Appeals Tribunal (“AAT”), which hears expert
evidence presented by panels comprised of more than one expert. Instead of using cross-
examination to challenge the credibility of conflicting opinions, experts for each side testify
together and discuss their different approaches and conclusions, and the tribunal asks questions
of both experts with the goal of obtaining the best possible evidence.
577
4.7 Appointment Process and Term Limits
The reforms introduced by the Adjudicative Tribunals Accountability, Governance and
Appointments Act
578
(“Accountability Act”) have not silenced critics of tribunal appointment and
575
Supra, footnote 491 at page 61. [Blake - Administrative Law]
576
R. A. Macdonald and M. Paskell-Mede, “Administrative Law,” (1981) 13 Ottawa L. Rev. 671 at page 737.
577
Supra, footnote 75 at page 197. [King, Freiberg, et al.] This process is authorized for Ontario tribunal
adjudication in the SPPA, supra, footnote 452.
578
Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched.
5.
144
retention practices. Term limits, discretionary re-appointments, lingering concerns about
patronage despite a merit-based appointment process, and large numbers of part-time members
are continuing concerns.
579
4.8 Informality
Informality is sometimes equated to a “less adversarial” process, but as discussed above,
informality relates to the physical decision-making environment and its atmosphere as well as
the decision-making process. Despite that tribunals are generally considered to be less formal
than courts, tribunals are neither inherently nor uniformly informal, but they can be designed to
be informal. Among the tribunals in which I observed hearings, some hearing rooms felt very
informal while others resembled courtrooms. The most consistently informal aspects of
administrative adjudication appear to be the ordinary business attire of adjudicators, the modesty
(even shabbiness) of some hearing rooms, and the absence of court-like customs, such as bowing
before the decision-maker.
4.9 Electronic Hearings
A number of alternatives to in-person proceedings are commonly available in administrative
adjudication. Among the tribunals studied here, the HRTO is currently conducting a pilot project
for telephone mediation in cases where both parties are represented by a lawyer or paralegal
(representation was reportedly considered essential to ensure “easy access to fax machine and/or
email and scanner”); the benefits of telephone mediation cited in the most recently published
HRTO Annual Report include “reduced travel time, convenience and potentially lower legal
579
Supra, footnote 469. [Ellis, Unjust by Design]
145
costs, because of time saved.”
580
It was noted in interviews for this project that both the LTB and
SBT conduct telephone or videoconference hearings, and the CFSRB conducts some pre-
hearings by telephone.
The availability of e-hearings is subject to a tribunal’s determination that unfairness to a party
will not ensue.
581
Some fairness concerns are technology-based, and may fade over time as
technology improves,
582
but the problems identified in a 2006 study remains noteworthy, and
include: inability to maintain eye contact or talk privately; camera angles that make it difficult to
read facial expressions and body language; audio that muffles nuances of speech and emotion;
and the extreme informality of remote settings (such as public school classrooms) which may
undermine tribunal authority and credibility.
583
On the positive side, some judges have reported
that viewing an electronically transmitted full-face close-up view of witnesses, rather than seeing
them at an angle from the bench, enhances the ability to assess credibility, and e-hearings
reportedly can save twenty-five to forty percent of hearing time, and further contribute to
efficiency by eliminating travel expenses and security costs.
584
Finally, “virtual tribunals” operate primarily or entirely on online.
585
In 2012, British Columbia
enacted the Civil Resolution Tribunal Act,
586
under which it has established a “Civil Resolution
580
SJTO Annual Report (2015-2016) online: http://www.sjto.gov.on.ca/documents/sjto/2015-
16%20Annual%20Report.html
581
Rule 5.2(2), SPPA, supra footnote 452.
582
Lorne Sossin and Zimra Yetnikoff, “I Can See Clearly Now: Videoconference Hearings and the Legal
Limit on How Tribunals Allocate Resources” (2007), 25 Windsor Y.B. Access Just. 247 at page 267.
583
Ibid., at page 253. [Sossin and Yetnikoff]
584
Justice A.W. Germain, “Judicial Comments about the Electronic (Digital) Trial Format” Schedule 1 to
1159465 Alberta Ltd. v. Adwood Manufacturing Ltd., 2010 ABQB 133.
585
Supra, footnote 450. [Sossin, Access to Administrative Justice]
586
Civil Resolution Tribunal Act, Bill 44 - 2012.
146
Tribunal” for specified small claims
587
and cases governed by the Strata Property Act.
588
The
Tribunal website describes it as Canada’s first online tribunal,
589
and its process begins with
individual online information gathering and problem diagnosis, moves to online monitored
negotiation, followed by two stages of case management; first, facilitative mediation and second,
preparation for adjudication. The final stage is adjudication, either online, by telephone, mail or
in person.
4.10 Summary
This chapter reviews common aspects of tribunal adjudication systems which, in my view, are
relevant to decision-making needs in custody and access cases. The discussion of the
components of adversarial and inquisitorial models illustrates that neither model in its pure form
is as desirable as a blend of both; I argue that inquisitorial processes seem more responsive to
unmet needs in family law dispute resolution than adversarial processes.
Active adjudication is a common feature of hybrid adversarial models with inquisitorial
elements. Despite that the “battle of wits and wiles”
590
premise adversarial systems is undone
when one or both parties is self-represented, the apprehension of bias standard has not yet been
modified to fully enable the use of active processes. Some may regard this as a healthy tension
that keeps adjudicators in check; that is, appropriately conscious of the potential for judicial
587
See: Schedule to Civil Resolution Tribunal Act, Bill 44 – 2012. Matters within the tribunal’s jurisdiction are
listed as claims for debt or damages, recovery of personal property, specific performance of an agreement
relating to personal property or services and relief from opposing claims to personal property.
588
Strata Property Act, SBC Ch. 43 (1998).
589
Civil Resolution Tribunal, online: https://civilresolutionbc.ca
590
Supra, footnote 174 at page 85. [Frank, Courts on Trial]
147
review. I later argue, based upon my empirical research, that the effects can be more far-ranging,
and include unpredictable hearing styles and a corresponding lack of tribunal process identity.
Finally, the appropriate role of guidelines and internal informal consultation are discussed,
including the need to clarify the boundary between expertise-sharing and fettering discretion.
148
5. EMPIRICAL RESEARCH
The tribunals studied, the Child and Family Services Review Board (“CFSRB”), Landlord and
Tenant Board (“LTB”), Social Benefits Tribunal (“SBT”) and Human Rights Tribunal of Ontario
(“HRTO”) are, as noted above, part of a cluster known as Social Justice Tribunals of Ontario
(“SJTO”).
5.1 Research Strategy and Method
(a) Case Study Strategy
A case study is not a research method; it is a qualitative research strategy in which a range of
methods may be utilized to accumulate data and investigate phenomena in the particular context
of the case.
591
Case studies are especially well-suited to the study of social, organizational and institutional
processes and they often examine groups and individuals within, or affected by, organizations.
592
They are useful for understanding how processes are influenced by their context and identifying
the meaning for institutional actors of key concepts and everyday institutional practices; they can
help to explain behavior which can only be fully understood by probing the broader forces that
operate within and upon an institutional entity.
593
591
Jean Hartley, “Case Study Research” in Catherine Cassell and Gillian Symon, eds. Essential Guide to
Qualitative Methods in Organizational Research (2004) (Sage Publications Limited: London) at page 323.
592
Ibid. [Hartley]
593
Ibid., at page 325. [Hartley]
149
The “case” in a case study refers to the system or phenomenon under study; case study research
may be based upon a single case or multiple cases, and it may focus upon an entire organization,
cases which exist within the organization, or some combination of both.
594
The empirical
research conducted for this project consists of a single case study in which the “case” is
adjudication within carefully selected tribunals.
The purpose of a case study does not typically include generalization of study findings.
595
The
central goal is to gain an in-depth understanding of the specific system or phenomenon under
study through the gathering of rich and detailed information.
596
The methods adopted here
(participant observation, ethnography and semi-structured interviews) are commonly used in
case studies,
597
and can be described as “information-oriented sampling,” a case study research
method that maximizes extensive and detailed information from a small group of subjects.
598
The
methods used in this study are based upon “sympathetic engagement”
599
and are inherently
subjective. This quality, considered problematic in quantitative research, is an essential source of
depth in qualitative research.
600
Case studies can be descriptive, explorative and/or explanatory,
601
and research methods utilized
in a case study may be qualitative or quantitative, but are typically qualitative. The research
594
Enjung Lee, Faye Mishna and Sarah Brennenstuhl, “How to Critically Evaluate Case Studies in Social
Work” (2010) 20(6) Research on Social Work Practice 682, at page 685.
595
Lawrence Leung, “Validity, Reliability and Generalizability in Qualitative Research” (2015) 4(3) Journal of
Family Medicine and Primary Care 324. Generalization of study findings occurs only at the level of theory,
which is referred to as “analytic generalization.”
596
Supra, footnote 591 at page 323. [Hartley]
597
Ibid., at page 324. [Hartley]
598
Supra, footnote 594 at page 685. [Lee et al.]
599
Supra, footnote 57 at page 79. [Nourse and Shaffer]
600
Supra, footnote 595. [Leung].
601
Supra, footnote 594 at page 683. [Lee et al.]
150
methods adopted for this project are qualitative. The debate over the relative merits of these
approaches is not re-visited here; I simply note that while quantitative methods may be more
acceptable to academics,
602
there is a level of nuance in qualitative research that has been said to
inspire more complex solutions, and is unquestionably suitable for exploratory purposes,
603
that
is, to enhance understanding as a preliminary step toward prescribing solutions.
Methods used for qualitative research may be deductive or inductive.
604
The method used here is
inductive. Deductive methods more closely resemble quantitative research; previous research is
used to develop a specific theory or set of hypotheses which are then tested. In inductive case
studies, theory and hypotheses may be rudimentary at the start and developed as the researcher
makes sense of fine-grained data and identifies what is of more general relevance and interest.
605
The initial theoretical framework for inductive research often simply consists of a research
question (for this project: whether there is positive potential for the use of tribunal processes in
family law), interview questions and definitions of key concepts.
606
Inductive methods are not
constrained by fixed methodological rules or a particular analytic approach; they allow
researchers to “follow their phenomena.”
607
For example, in this project I did not initially expect
602
Catherine Cassell and Gillian Symon, “Assessing Good Quality Research in the Work Psychology Field: A
Response to the Commentaries” (2011) 84 Journal of Occupational and Organizational Psychology 666 at page
667.
603
Ibid., at page 667. [Cassell and Symon]
604
Supra, footnote 594 at page 684. [Lee et al]
605
Supra, footnote 591 at page 324. [Hartley]
606
Ibid., at page 324. [Hartley]
607
Karen Locke, “Narratives of quality in qualitative research: putting them in context” (2011) 84 Journal of
Occupational and Organizational Psychology 656 at page 659.
151
that active adjudication would be a central theme; it became so because its use was contested in a
hearing I observed, and later became the subject of a judicial review decision.
608
“Sampling” refers to the selection of subjects or units of study.
609
Qualitative sampling is not
based upon principles associated with statistical methods, and selection criteria for units or
samples are not usually pre-specified and may be both planned and “opportunistic,”
610
that is,
expanded on a “rolling basis” through referrals or the requirements of evolving theories derived
from the data.
611
This was the process used for this project, as detailed below.
The essential task of the methodology type adopted for this study is “to make sense of and
recognize patterns among words in order to build up a meaningful picture without compromising
its richness and dimensionality.”
612
More prosaically, this sort of analysis has been compared to
detective work: it involves piecing together collected data to generate or support theories of
broader interest.
613
The narrative portion of a such analysis is unlikely to be compelling reading
among those outside the organization studied, although the broader implications of the analysis
may be of wider interest.
614
608
Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry v. S.V.D., 2016 ONSC
350 (Div. Ct.).
609
Sarah Curtis, Wil Gesler, Glen Smith, and Sarah Washburn, “Approaches to Sampling and Case Selection
in Qualitative Research: Examples in the Geography of Health” (2000) Social Sciences and Medicine 1001 at
page 1002.
610
Supra, footnote 591 at page 324. [Hartley]
611
Supra, footnote 609 at page 1002. [Curtis]
612
Supra, footnote 595. [Leung].
613
Supra, footnote 591 at page 324. [Hartley]
614
Ibid., at page 330. [Hartley]
152
Standard experimental or survey design criteria are not relevant to assessing the validity of the
kinds of qualitative research methods used in this case study; validity and credibility remain
essential but are assessed differently.
The “internal validity” of a qualitative case study depends upon the research question and the
suitability of the methodology for exploring the research question.
615
“External validity” depends
upon whether the study provides sufficient in-depth “thick description” to enable the reader to
sense that its findings are likely to be consistent in a similar context;
616
otherwise expressed as
whether the research provides “a really convincing account of what is observed.”
617
There are several sources of credibility for qualitative case study research, including: rich and
meaningful description (also relevant to validity),
618
a rigorous approach to data collection, the
use of multiple sources of data; development of a transparent “case study database,” using charts
and coding systems to organize raw data;
619
internal coherence in the data analysis, pointing out
similarities and contrasts in the data,
620
and a ratio between evidence and argument that suggests
findings are well supported and logically drawn.
621
615
Supra, footnote 595. [Leung].
616
Supra, footnote 594 at page 684-686. [Lee et al]
617
Supra, footnote 609 at page 1003. [Curtis]
618
Supra, footnote 591 at page 323. [Hartley] See also: supra, footnote 594 at page 684. [Lee et al]
619
Ibid., at page 688. [Lee et al]
620
Supra, footnote 591 at page 324. [Hartley]
621
Mark Hickson III, “Counting to One: The Qualitative Researcher’s “Magic”” (2011) 84 Journal of
Occupational and Organizational Psychology 651 at page 654.
153
(b) Parallels Between Family Law and the Tribunals Studied
As noted earlier, in my view, the tribunals selected for study have similarities to family law
courts. This claim is based upon several factors, beginning with the very high proportion of self-
represented parties in these tribunals, comparable or exceeding that which is reported the
Canadian family court systems.
I note that Noel Semple has used the term “personal plight sector” to describe a category of legal
needs that arise out disputes (rather than transactions) between individuals (rather than legally
created entities) which are caused by “an underlying life crisis.”
622
Semple notes that areas of
law in which personal plight needs arise include family, criminal defense, employment and
personal injury.
623
While it may be argued that family law problems are more complicated and entail higher levels
of conflict than the subject matter of the tribunals studied, or that substantive family law is more
complex and less clear than the law applied in the studied tribunals, I point out that the CFSRB is
charged with applying the best-interests-of-the-child test, and it deals with families engaged with
child protection services, one of the most discretionary and emotionally fraught areas of the law.
The HRTO deals with employment law and is charged with applying the discretionary “duty to
accommodate” test. Its caseload includes disputes between individuals, which may have high
emotional stakes due to loss of income and/or allegations of sexual assault, racism and other
forms abuse. The LTB adjudicates eviction orders, sometimes for tenants who are highly
marginalized and occupy subsidized housing. Lastly, SBT hearings concern claims for income
622
Supra, footnote 306 at page 146. [Semple, Third Revolution]
623
Ibid., at page 133. [Semple, Third Revolution]
154
support arising out of disability, which require adjudicators to independently assess medical
evidence.
(c) Methodology
The research question for this project was addressed by exploring tribunal decision-making. I
began this process with participant observation; I sat in on multiple LTB, CFRSB and HRTO
hearings, but have not observed SBT hearings. Participant observation is the main research
method used in ethnography. It requires close observation of events and/or behavior in a specific
context, and recording observations and experiences in extreme detail, usually in the form of
meticulous notes. The collected data is reviewed and summarized, again in great detail,
preferably immediately following the observation phase. Hypotheses may emerge from the data
which determine the direction of future data collection. It is a reflexive process that does not rely
upon standard protocols. Its credibility is assessed in the same way as described above with
respect to the external validity of case studies in general: through the reader’s sense of deep
engagement with the observed events or behavior and sense of the reality of what has been
described.
624
I have had informal discussions with court-adjunct mediation personnel in Toronto, employees
of The Human Rights Legal Support Centre, and Provincial Court duty counsel and advice
counsel. I have conducted twenty-one interviews with members and Vice-Chairs of the tribunals
624
See: Alexandra Crampton, “Escape from the Laboratory: Ethnographic Methods in the Study of Elder and
Family Court Mediation” (President and Fellows of Harvard College Negotiation Journal, July 2016) 191 at
page 196.
155
studied, some of whom are cross-appointed to more than one tribunal and described their
experiences accordingly.
I sought and received permission from the CFSRB to observe proceedings, as they are closed,
and to interview its members. I later sought permission from the SJTO to interview members of
the other tribunals studied and was provided with a list of recommended interview subjects. I
drew from this list as well as my own list of potential interviewees, compiled based upon online
member biographies, and added more interview subjects on a rolling basis, through
recommendations of other interviewees based upon fellow members’ areas of expertise. The
members interviewed have a wide variety of backgrounds and levels of experience.
The depth of the reporting on each tribunal studied varies in accordance with the number of
interview requests accepted in each tribunal. Eight interviews were conducted with members of
the CFSRB; six with members of the HRTO, three with members of the LTB and four with
members of the SBT. As noted above, some members were cross-appointed and commented
upon more than one tribunal.
The same topics were canvassed in all interviews, although in some instances time constraints
and/or an adjudicator’s personal areas of interest or expertise led to more discussion of some
topics and less of others. Broadly stated, interviews covered perceptions of tribunal mandate, the
effects of self-representation on tribunal functioning, techniques adopted by adjudicators to deal
with self-represented parties, attitudes toward active adjudication and common active
adjudication techniques, the extent to which tribunals are adversarial (or not), perceptions about
156
informality, availability of mediation and other settlement strategies, settlement pressure, the
development and utilization of institutional expertise, internal consultation and communication,
and current policy issues. While the research was focussed upon the actual experiences of
tribunal members, not their future policy or practice preferences, the latter were sometimes
solicited or volunteered, and are included in this report to the extent they provide insight as to
potential tribunal processes.
Interviews were semi-structured and conversational; a chart of questions was used to guide
discussions but was not treated as a questionnaire, and notes were taken almost constantly.
Following each interview, these notes were immediately reviewed and summarized, and as
common and contrasting themes emerged, they were separately noted. Once all interviews were
completed, the notes and summaries were again analysed to separate out common responses,
responses supportive or contrary to common responses, outlier responses, and areas in which
there was no common response. This data was compiled in the chart attached as Appendix B. In
keeping with the research methodology, the results are also reported in narrative form in Chapter
Six, and no statistical analysis has been attempted.
5.2 Tribunals Studied
(a) Child and Family Services Review Board
The CFSRB is of particular interest for this project because of its mandate to apply the best-
interests-of-the-child test, and its use of multi-disciplinary decision-making panels in these cases.
157
The Board was constituted under the Child and Family Services Act,
625
(“CFSA”), the stated
purpose of which is “to promote the best interests, protection and well-being of children.”
626
Its
review powers cover a wide range of children's aid society decisions.
627
It is also an appeal
forum under the Education Act
628
for school board expulsions of students.
The Board adjudicates disputes between individuals and institutions, such as school boards and
children’s aid societies, not between private parties. In Ontario, children’s aid societies are
independent non-government bodies, which are created under the authority of the Ministry of
Children and Youth Services but have considerable autonomy.
629
Applications to the CFSRB are
not eligible for legal aid.
The strength of the CFSRB’s remedial power varies. Under sections 68 and 68.1 of the CFSA the
Board was granted an apparent oversight role with respect to complaints regarding children’s aid
society services and decisions, after they have been through an internal children's aid society
review process. The role of the Board is in these cases is to ensure that society decisions have
625
Child and Family Services Act, RSO 1990, c. C.11, recently replaced with the Child, Youth and Family
Services Act, Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1. The new legislation
greatly expands the cultural background and personal characteristics of the child to be considered in the
application of the best-interests-of-the-child test.
626
Ibid., s.1(1). [Child, Youth and Family Services Act]
627
Supra, footnote 580. [SJTO Annual Report]
The CFSRB reviews, under the CFSA, supra. footnote 363: children's aid society decisions to remove a Crown
ward from a foster home under section 61; complaints about children's aid society services under sections 68
and 68.1; residential placements of children under section 36; emergency admissions to secure treatment
programs under section 124; decisions to refuse an adoption, remove a child from an adoption placement, or
place conditions on adoption under sections 141, 142.3 and 144.
628
Education Act, R.S.O. 1990, c. E.2, section 311.7.
629
Children’s aid societies are not, strictly speaking, “government actors;” they are non-government
organizations funded by government. In addition to acting pursuant to the CFSA, supra note 8, the Board
operates under the Education Act, R.S.O. 1990, c. E.2., and the Intercounty Adoption Act, 1998, S.O. 1998, c.
29.
158
been accompanied by adequate reasons and it may require a society to further explain its
decisions. Its role in these hearings is to ensure that complainants “feel heard,” and in
appropriate cases, to work toward improving the ongoing relationship between a society and the
complainant. This work forms the bulk of the CFSRB’s caseload. By way of contrast, the Board
has much greater remedial authority under sections 61 and 144 of the CFSA, pursuant to which it
is required to make best-interests-of-the-child determinations and confirm or rescind children’s
aid society decisions.
630
This project focuses upon the self-represented population in all CRSRB
cases, and in dispute resolution in section 61 and section 144 cases, despite that the latter
constitute a small fraction of the Board’s caseload, as they involve the application of the best-
interests-of-the-child test.
The SJTO Annual Report for 2015-2016
631
indicates that Regulation 70 under the CFSA has
recently been amended to reduce the minimum number of members required to hear an
application for review from three to one. It reports that the new practice is for one member to
hear section 68 applications and two-member panels to hear “other application types.” The
Annual Report describes the motivation for this change as “more effective use of resources and a
significant reduction in part-time member per diem costs and travel expenses.” The research for
this project was conducted prior to this change, and all discussion of panel decision-making is
based upon three-member panels.
630
Ibid., s.144(11); s. 136(2) specifies the potentially relevant criteria.
631
Supra, footnote 580. [SJTO Annual Report]
159
CFSRB membership currently includes two senior SJTO executives, one Associate Chair, one
Vice-Chair, and nineteen part-time members.
632
The CFSRB completed 196 section 68
applications in the 2016-2017 reporting period, of which 123 were resolved by settlement and
twenty-two by adjudication;
633
it completed eight section 61 applications, of which seven were
resolved by settlement and none by adjudication, and ten section 144 applications, of which four
were resolved by settlement and three by adjudication.
(b) Human Rights Tribunal of Ontario
The HRTO exercises statutory powers of decision over claims of discrimination and harassment
made under the Ontario Human Rights Code.
634
The HRTO adjudicates disputes between private
individuals or between individuals and corporate or government entities.
The HRTO is the only tribunal within the SJTO authorized to use a mediation/adjudication
model known as “med/adj,” an optional process added to the HRTO Rules in 2010.
635
The HRTO is the also the only tribunal within the SJTO to have express statutory authority to
employ active adjudication techniques, although members of all SJTO tribunals reportedly
receive training in active adjudication. In 2008, the HRTO shifted from a commission model to a
632
Public Appointments Secretarial website:
https://www.pas.gov.on.ca/scripts/en/BoardDetails.asp?boardID=715
633
Supra, footnote 580. [SJTO Annual Report]
634
Human Rights Code, R.S.O. 1990, c.H.19.
635
David E. Wright, “Implementing the New Ontario Human Rights Code: A Tribunal Perspective” (2014), 18
Canadian Lab. & Emp. L.J. 101 at page 113.
160
“direct access” model.
636
It was correctly anticipated that the new model would attract a large
number of self-represented parties and create a significant backlog of cases. For these reasons,
inquisitorial powers were granted to the new Tribunal under the Human Rights Code, including
authority to:
... provide for and require the use of hearings or of practices and procedures that are
provided for under the Statutory Powers Procedure Act or that are alternatives to
traditional adjudicative or adversarial procedures; define or narrow the issues required
to dispose of an application and limit the evidence and submissions of the parties on such
issues; determine the order in which the issues and evidence in a proceeding will be
presented; authorize the Tribunal to conduct examinations in chief or cross-examinations
of a witness; prescribe the stages of its processes at which preliminary, procedural or
interlocutory matters will be determined; authorize the Tribunal to make or cause to be
made such examinations of records and such other inquiries as it considers necessary in
the circumstances; authorize the Tribunal to require a party to a proceeding or another
person to, produce any document, information or thing and provide such assistance as is
reasonably necessary, including using any data storage, processing or retrieval device or
system, to produce the information in any form, provide a statement or oral or affidavit
evidence, or in the case of a party to the proceeding, adduce evidence or produce
witnesses who are reasonably within the party’s control.
637
[emphasis added]
These powers were initially mirrored in the Tribunal Rules; however, authority on the part of
adjudicators to cross-examine witnesses has since been deleted from the Rules.
638
The HRTO’s
direct access model was the subject of Andrew Pinto’s 2012 Report of the Human Rights Review
(“Pinto Report”) which recommended more robust use of active adjudication.
639
Finally, a
further innovation that occurred as a result of the concern over large numbers of self-represented
parties in the direct access model was the establishment of the Human Rights Legal Support
Centre (“HRLSC”), a specialized adjunct legal advice service. It reportedly provides full
636
The Ontario Human Rights Commission still exists, and functions to promote research, education, policy
development and “targeted legal action” with respect to human rights issues. See online: ohrc.on.ca
637
Ontario Human Rights Code, 2006, c. 30, s. 5, section 43(3).
638
Rules of Procedure for Applications under the Human Rights Code, Part IV, R.S.O. 1990, c.H.19, as
amended, Rule 1.7 m.
639
Andrew Pinto, “Report of the Human Rights Review” (2012), online:
https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/human_rights/
161
representation in about twenty percent of cases for which representation is sought, although it
performs a “coaching” role in many others.
640
HRTO membership currently includes two senior SJTO executives, one Associate Chair, twenty-
one full-time Vice-Chairs and thirty-three part-time members.
641
The HRTO “closed” 3,234
cases the 2016-2017 reporting period, and held mediation in 1,584 cases, of which fifty-eight
percent settled.
642
(c) Landlord and Tenant Board
The Landlord and Tenant Board has the largest caseload of any tribunal in Ontario. It adjudicates
disputes under the Residential Tenancies Act,
643
between private individuals, or between
individuals and corporate or government entities. The focus of the LTB was described in some
interviews for this project as “high-volume, repetitive work.” Its powers of decision appear to be
less discretionary than those of the other tribunals studied, although members interviewed noted
sites of discretion within their mandate.
The LTB has undertaken a Case Management Hearings Pilot Project (“CMH Pilot Project”) in
some locations, pursuant to which a Case Management Hearing (“CMH”) is mandatory for all
tenant applications, reportedly because tenants tend to be the least organized Board participants,
and their applications are the easiest to settle. A CMH may be conducted in person or by
640
Supra, footnote 375. [Human Rights Code]
641
Public Appointments Secretariat, online:
https://www.pas.gov.on.ca/scripts/en/BoardDetails.asp?boardID=112312
642
Supra, footnote 580. [SJTO Annual Report]
643
Residential Tenancies Act, 2006, S.O. 2006, c. 17.
162
telephone and is presided over by a dispute resolution officer (“DRO”) who may be either a
mediator or a case administrator, depending upon location. It was reported that mediation at the
Board was previously unstructured, with mediators “wandering around” encouraging parties to
mediate; the CMH Pilot Project was described as an attempt to improve upon this approach.
There are various consequences for failure to attend, and CMH hearings may only be adjourned
in narrowly defined “exceptional circumstances.”
Member estimates as to settlement rates for CMH mediation varied; some reported them as
higher than ordinary mediation, and some as lower on the basis that CMH is involuntary and
engages parties who are not necessarily committed to a settlement solution. Despite these
differing perceptions the program was consistently described as successful.
LTB membership currently includes two senior SJTO executives, one Associate Chair, seven
full-time Vice-Chairs, thirty-six full-time members, and ten part-time members.
644
The LTB
resolved 78,135 cases the 2016-2017 reporting period, of which 11,541 were settled in mediation
and 48,533 were resolved through adjudication.
(d) Social Benefits Tribunal
The Social Benefits Tribunal was established under the Ontario Works Act,
645
and adjudicates
appeals from government decisions made under this statute and the Ontario Disability Support
644
Public Appointments Secretariat, online:
https://www.pas.gov.on.ca/scripts/en/BoardDetails.asp?boardID=112312
645
Ontario Works Act, 1997, S.O. 1997, c. 25, Sched. A
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Program Act.
646
It was reported in interviews that the vast majority of cases concern claims for
income support which have been refused, or in which the quantum of benefits is disputed.
SBT appellants face a government respondent in the form of a Case Presenting Officer (“CPO”),
who may or may not be a lawyer, or through written submissions. The SBT operates an Early
Resolution Opportunity program (“ERO”), that consists of a telephone mediation session
presided over by an Appeal Resolution Officer. SBT proceedings are eligible for legal aid.
SBT membership currently includes two senior SJTO executives, one Associate Chair, four full-
time Vice-Chairs, seventeen full-time members, and sixteen part-time members.
647
The SBT
completed 13,038 cases the 2016-2017 reporting period, of which 8,087 were resolved through
adjudication, and held 1,508 ERO sessions, with a settlement rate of thirty-four percent.
648
646
Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B
647
https://www.pas.gov.on.ca/scripts/en/BoardDetails.asp?boardID=120959
648
Supra, footnote 580. [SJTO Annual Report]
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6. REPORT ON EMPIRICAL RESEARCH
I'm seated in a worn hotel conference room just large enough to accommodate
its furnishings. Faux-traditional wallpaper and cornice mouldings are at odds
with black office chairs and fluorescent lights. I’m here to observe a hearing to
determine which of two families will be permitted to adopt a child. Both families
have cared for him for long, almost equal periods of time, and both claim deep
attachments.
I have been directed to an upholstered armchair near the room’s entrance, next
to a small round table. I’m self-conscious about taking the most comfortable
chair in the room. I avoid eye contact for the most part, making notes and
striving to be inconspicuous.
The children’s aid society is represented by a lawyer. He sits a couple of chairs
away from one of the foster parents. Between them sits the instructing member
of the CAS, who occasionally glances at the other foster parents, not supported
by the society, who are seated at the opposite branch of a U-shaped table
covered in white tablecloths. They are self-represented.
The middle section of the U-shaped table is occupied by the adjudicators, a
panel of three members of the Child and Family Services Review Board,
selected for this hearing. The Chair of the panel, seated at the centre, is a
lawyer. She is flanked by professionals with mental-health credentials, on her
right a psychiatrist and on her left a PhD in psychology. All three are women.
It is the morning of day one, and the room holds a sense of fresh anticipation.
Polite nods are exchanged as materials are unpacked and organized. One of
the self-represented foster parents sets out, among piles of papers and files, a
small tea set, a basket of healthy looking snacks and a large framed photograph
of the child who is the subject of the hearing. She gently asks the panel if she
may display the photo, so everyone can be reminded of “why we are here.” The
Chair replies with a smile that the photos in the file are sufficient. The foster
mother nods and adjusts the angle of the photo so it is visible only to her.
The Chair explains rudimentary procedural rules to the self-represented foster
parents, the witness list is reviewed, and a few witnesses are eliminated. The
Chair pauses briefly and begins to speak in a quiet and concerned tone about
the importance of “civility.” Acknowledging the emotional nature of the
proceedings, she urges all participants to focus on the best interests of the child,
stressing that the Board is not interested in assigning blame. She concludes by
saying, “it doesn’t get any harder than this.”
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The Chair asks CAS counsel to call his first witness. The self-represented foster
mother raises her hand and quietly asks to make an opening statement. The
Chair asks CAS counsel and the foster parent seated beside him if they have
prepared openings; they have not. CAS counsel offers to improvise, and the
foster father gestures toward CAS counsel, shrugging and smiling. I realize that
he and his wife, who is absent, are indirectly represented by the Society.
The self-represented foster mother, who will turn out to be the primary
spokesperson for she and her husband, begins to give evidence; she recites a
detailed account of the ways in which she has been misrepresented by the
society. She sounds unconsciously self-righteous and defensive. CAS counsel
counters with a chronology of incidents of conflict between the CAS and this
foster mother, characterizing her as lofty and uncooperative.
The first witness, a society worker, enters the room and sits at a small square
table also draped in hotel white, at the mouth of the U. She is asked by the
Chair to swear a plain oath, simply promising to tell the truth. CAS counsel
remains seated as he delivers his questions to the witness, and as he addresses
the panel.
Throughout the first witness’ testimony the Chair occasionally interjects to
request that the witness testify only to facts, not what others may have been
thinking or feeling, and a few times she restrains CAS counsel from excessively
leading the witness. The psychiatrist interjects, asking the witness a question
about her testimony. The witness says she needs access to her case note. It
emerges that the CAS has not brought its entire file as requested by the Board.
The Chair states that the Board requires the missing note. In what will become a
recurring source of frustration for all concerned, the proceedings are
interrupted to search for missing material.
A second witness is called, who is also a CAS worker. Her testimony suggests
she dislikes the self-represented foster mother and regards her as grandiose. She
bristles as she recounts the self-represented foster mother’s assertions of her
own competence. She speaks with stubborn-sounding insistence as she describes
the inadequate care the child received in care of the self-represented foster
parents, and in glowing terms of the care provided by the foster family
represented by society counsel.
As CAS counsel takes the second witness through examination in chief, there are
several long delays as she, too, shuffles through her file looking for case notes.
Once a note is located the proceedings are further delayed as panel members
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This chapter summarizes research interview responses in narrative form. Common responses are
identified, as are responses that contradict them; where there was no common response, this too
is indicated. Many responses include short quotes to give a sense of their tone, but there is no
lengthy direct quotation. The format of this chapter is intended to illustrate the variations and
similarities among the responses of the tribunal members interviewed, with respect to the
subjects explored, and is not intended to draw a portrait of each tribunal. While the views of
individual members interviewed suggest common and contrary responses among the members
interviewed, they are not presented as representative of the tribunal as a whole. Ethnographic
reports are interspersed, and findings are summarized at the end of the chapter.
6.1 Self-Represented Parties
CFSRB adjudicators interviewed commonly reported that applicants are almost always self-
represented, with the percentage generally estimated at ninety-five to ninety-eight percent in
proceedings involving children’s aid societies, whereas children’s aid societies are invariably
represented, usually by in-house counsel. Several adjudicators mentioned that applicants are
repeatedly leave the room to make copies. The foster father seated with the CAS
is animated, exchanging papers with counsel, whispering to the CAS
representative and writing notes.
Throughout all testimony the Chair almost incessantly takes notes. The
psychologist is a slightly less dedicated note-taker and has yet to ask any
questions or offer any comments. The psychiatrist watches the witnesses
carefully, seldom writing anything.
At this point, the hearing feels informal and business-like.
167
more likely to be represented in school expulsion proceedings than in children’s aid society
cases, although this is not the norm.
As noted, the bulk of the CFSRB caseload consists of section 68 applications. Among members
interviewed, parties in section 68 proceedings were frequently described as having low levels of
income and education, being “needy” and unsophisticated, and sometimes having mental health
problems. One member described them as “victimized groups over-exposed to the judicial
system.” Another member remarked with some admiration that these applicants are often single
mothers who may be poorly educated but are “street smart and gutsy.”
In section 144 proceedings, which engage the foster parent community, and in school expulsion
proceedings under section 311.7 of the Education Act, self-represented parties were portrayed as
a diverse group, more likely to include seeming members of the middle-class. One member
observed, “the Board sees a whole range of human experience,” and another described self-
represented parties in section 144 proceedings as ranging from low-functioning to relatively
sophisticated, noting that adjudicators must adjust their process and approach depending upon
the individual characteristics and needs. It was commonly observed that despite Board efforts to
assist self-represented parties in managing Board processes, they remain a “vulnerable
population” that is “hugely disadvantaged.” Most adjudicators interviewed attributed self-
representation to the cost of legal services; as one member remarked, “Even people with good
salaries don’t want to pay $400 an hour.”
168
With respect to the apparent effects of Board processes on self-represented parties, it was
commonly reported that they are very often visibly stressed and overwhelmed in all types of
proceedings. One member described “a wall” between society professionals and self-represented
applicants, created not just by the nature of the proceedings but also by the contrast between self-
represented parties and the experience, confidence and competence of society representatives and
their counsel.
Among CFSRB adjudicators interviewed, typical responses to the question, “Is the tribunal
comfortable dealing with self-represented parties?” included: “Of course, it’s all we do”; “It’s
just our reality”; and, “Any adjudicator who is not comfortable with self-represented parties
should not work at this Board.” One member described the Board as having developed a culture
of “respect, support, and patience” with respect to self-represented parties, and said they are not
“brushed off” at the Board.
Consistent with this, participating CFSRB adjudicators overwhelmingly reported that
representation, or the lack of it, is a neutral factor in performing their roles; that is, while
adjudication is different in the absence of a lawyer performing certain tasks, it is not more
difficult. A very small minority reported that self-represented parties with mental health issues
require constant accommodation, making these cases feel “risky and taxing.” While almost all
interviewees claimed to experience no additional sense of pressure due to self-representation,
this response varied by type of proceeding. In section 68 proceedings members reported no
disadvantages in terms of their experience of adjudication, but for best-interests-of-the-child
cases some characterized lack of representation as problematic due to the combination of
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relatively “high stakes” and systemic power imbalances. One member reported that self-
represented parties initially believe the Board is accessible without a lawyer, but once they see
that children’s aid society representatives are accompanied by counsel, they are sometimes taken
aback, saying some version of “I didn’t know I had to have a lawyer.”
Unsurprisingly, participating CFSRB adjudicators reported the greatest specific challenge for
self-represented parties as “the acting like a lawyer stuff.” Uncertainty about how to question
witnesses, especially on cross-examination, what to say and when to say it, and trying to speak,
but being stopped or interrupted by the adjudicator or opposing counsel, were all mentioned.
As noted above, applications to the CFSRB are not eligible for legal aid. It was reported that as a
result, not many lawyers do “applicant work” and no onsite legal advice services, such as duty
counsel, are available. Although this was reported as problematic by several adjudicators, there
was no common thread about the value of legal advice services. Some considered legal advice
irrelevant to 68 applications because of the Board’s limited remedial authority. Others remarked
that duty counsel would be appropriate for some section 68 cases, but best-interests-of-the-child
cases are too complex and “high stakes” for legal advice alone to be meaningful; only full legal
representation would make a difference. A significant number responded that applicant lawyers,
when they do appear, tend to unnecessarily complicate Board proceedings.
It was consistently reported that a great deal of effort is made by the Board to assist self-
represented parties in advance of hearings. It is apparently not uncommon for applicants, at the
outset of a CFSRB process, to have little or no understanding of potential claims, available
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remedies or Board procedures, all of which is addressed in Board pre-hearing processes. The
Board’s “institutional competence” in making its processes manageable was often noted; the role
of case coordinators, described by one interviewee as “hand holders,” reportedly includes
informing applicants that the Board will determine whether they have a claim that falls within
the Board mandate. In other words, the Board does not leave it to self-represented parties to
define their problem in legal terms. It was reported that people who approach the Board are often
“in crisis,” and the role of case coordinators is to make them aware of their options, and once an
application is filed, to become a contact person at the Board for the purpose of scheduling
appearances and answering questions. It was noted by one adjudicator that self-represented
litigants sometimes rely too heavily upon case coordinators, expecting them to give legal advice
and actively prepare a case.
After an application has been filed, the next step is a pre-hearing. It was reported that the Board
has developed a document that explains pre-hearings, and self-represented parties have since
tended to be better prepared. If the parties consent, a pre-hearing can be converted to a mediation
session. If it remains a pre-hearing, or if settlement is attempted but not achieved, disclosure
orders are often made. It was reported that whether or not pre-hearings have been converted to
mediation, members interviewed “put remedies on the table” and inform self-represented parties
of available claims of which they seem unaware. It was remarked that a lot of “heavy lifting” is
done by adjudicators in pre-hearings; as one member put it, the adjudicator must figure out what
a self-represented litigant could claim but is “at sea about,” explain disclosure and filing
requirements, and generally assist parties onto a path toward a productive hearing. It was
observed that there is a general tendency to assume that self-represented parties understand more
171
than they do about how to prepare a case; while they have a story to tell, translating it into
evidence does not often come naturally, and some are initially unaware that evidence is even
required. One member remarked that pre-hearings would be more effective if there were a more
intense focus on the evidence needed and how it might be obtained.
It was generally considered among CFSRB adjudicators interviewed that self-represented parties
are becoming better informed at the hearing stage. This was mostly attributed to improved Board
strategies to educate and prepare parties at the intake and pre-hearing stages, as noted and, less
often, to the use of online information. A few members reported that it is no longer surprising for
self-represented parties to attend hearings with printed materials in hand, such as case law
obtained through CanLII, or information obtained from the SJTO website or other online
sources, but others reported, “Web-based information is not especially helpful to Board
clientele.”
The HRTO is similar to the CFSRB in that the percentage of self-represented litigants is much
higher for applicants than for respondents; it was commonly estimated among participating
members that sixty to seventy percent of applicants are self-represented in Tribunal hearings,
whereas the percentage of respondents who are represented was pegged at eighty to ninety
percent. These estimates are consistent with SJTO Annual Report
649
statistics as to rates of
representation.
649
Supra, footnote 580. [SJTO Annual Report] The Report does not include this information for the other
tribunals studied.
172
Applicants are reportedly a diverse group at the HRTO, sometimes including people who exhibit
obvious stress or emotional problems or “what one would expect to see in a vulnerable
population.” One member described the high rate of self-representation as surprising in view of
the “complexity of the legal issues and the formality of proceedings.”
The “flexibility and relationship-building skills” of case processing officers was cited among
members interviewed as helpful in allowing the tribunal deal effectively with self-represented
parties. The use of “case management directives” in advance of the hearing stage was reported as
uneven, although some adjudicators reported using directives to convey pre-hearing
determinations (such as direct a case to summary hearing), give instructions (for example, to
reduce a lengthy and non-comprehensible claim to a limited number of pages), or provide
information (such as a pending or missed deadline).
Reports on the extent to which self-represented parties seem able to manage Tribunal
proceedings were highly varied. For example, responses included: the ability to function well
depends upon the level of analysis required in each case; some applicants do not get the basic
idea that there are legal tests and evidence is needed; some self-represented parties do an
“amazing job, as well or better than a lawyer would;” and, “lots of people do just fine.”
HRTO members interviewed commonly reported being comfortable dealing with self-
represented parties although, unlike their CFSRB counterparts, many reported a sense of relief
when both parties appear with counsel. It was remarked that some self-represented parties need
much more help than others, but most adjudicators are “savvy enough” to get the information
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needed. Several reported that hearings involving self-represented litigants are more strenuous
because it becomes the adjudicator’s job to ensure that every aspect of a claim has been
considered, in part to position for potential judicial review.
Several participating adjudicators remarked that the HRTO was designed to facilitate self-
representation, but a small minority disagreed, noting instead that the public perception of the
tribunal as “applicant-friendly” is inaccurate because the Tribunal is very much based upon a
traditional litigation model. There was no common thread in responses as to whether there has
been a change in the level of sophistication of self-represented parties through self-informing.
Some reported no change, others saw a “big change.” A member in the latter group remarked
that while self-represented parties may obtain case law from CanLII they often do not understand
that one case is not enough. Another member remarked that the availability of these resources
may further marginalize those who do not have the ability or means to utilize them.
It was often reported by HRTO interview subjects that respondent lawyers tend to be highly
competent, often from specialized firms. The typical quality of applicant lawyers was described
variously: they were often characterized as ill-informed, having not “bothered to” learn about the
Tribunal process or even the relevant substantive law (on the apparent assumption that tribunals
processes are “easy”) or having wholly unrelated skills and training (a criminal law background
was mentioned most often) and being a “net negative,” that is, worse than no lawyer. Several
adjudicators were unflattering in their assessments of paralegals, as well. The term “under-
represented” was used to describe the effect of representation by paralegals (and lawyers) who
assemble “low quality evidence” and demonstrate a shallow understanding of the relevant legal
174
framework. One member noted that some paralegals (like some lawyers) are unaware of entire
sections of legislation that might assist their clients; another reported that the “vast majority” of
paralegals are a hindrance. Conversely, a minority of members interviewed described “some
paralegals” as “very, very good,” and as a group, getting better over time. Power imbalances
were commented upon by some, due to the quality differential in representation as between
applicants and respondents, or the lack of applicant representation, but concern was muted
among HRTO interviewees in comparison to CFSRB interview subjects.
The most consistent description of the HRLSC among interviewed members was some variant of
“hugely oversubscribed.” Instead of an income test, the HRLSC reportedly uses a two-pronged
triage approach in which the level of representation provided depends upon both the nature of the
claim and the applicant’s ability to self-represent. In my discussion with a HRLSC staff member
it was indicated that full representation is provided in approximately twenty percent of cases for
which representation is sought, and a “coaching” role is performed in many others. Some
adjudicators remarked that they can often tell from the quality of materials that the HRLSC has
provided assistance, but others reported the opposite.
As to whether the HRTO is accessible without representation, HRTO members interviewed
commonly responded that it is part of the job of an adjudicator to make it possible to appear
without counsel. It was said that the tribunal is manageable at the mediation and hearing stages
due to the skill of members, but the preparation stage (drafting and filing witness statements,
seeking appropriate remedies) remains challenging for self-represented parties. Nonetheless, it
was reported as rare for self-represented parties to arrive at hearings without knowing the case
175
they need to make, and the evidence required. One member considered that accessibility varies
with subject matter, saying “anyone can argue sexual harassment,” but legal tests such as “the
duty to accommodate” are far more nuanced and challenging for self-represented parties.
In LTB proceedings, it was commonly reported that tenants are “almost always” self-
represented, whereas a majority of landlords have some form of representation. Among the
members interviewed, it was estimated that about seventy-five percent of landlords are
represented by lawyers, paralegals or “landlord representatives,” the latter of which may be
specialized paralegals or property managers with no legal accreditation.
In keeping with CFRRB responses, LTB interviewees consistently reported that the Board is
very comfortable dealing with self-represented parties. They described the self-represented
community as varied, but overall tending to be disadvantaged, economically or otherwise, and
sometimes displaying obvious mental health issues. LTB hearings were described as often
emotional. Several members remarked that frustration with personal problems can be manifested
in the hearing room through behaviours such as interrupting other side, arguing with the
adjudicator or otherwise failing to observe the expectations of a hearing process.
Among LTB members interviewed, it was reported that LTB onsite duty counsel services are
underutilized. It was reported as a recurring problem for self-represented parties to decline to
meet with duty counsel, then appear before the Board with no argument, evidence or proposal in
support of their position. It was reported by some that duty counsel services are simply not very
effective, for reasons including: self-represented parties are given fifteen to twenty minutes of
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advice and little or no assistance with written submissions; advice may not be well understood
and therefore not applied; it is reportedly rare for duty counsel lawyers to attend hearings,
although some will reportedly sit in and become involved if the need is perceived; tenants who
go to duty counsel often do not take notes, rendering the advice received ephemeral: a self-
represented party may return from duty counsel and ask for adjournment without being able to
articulate the basis for the request, leaving it to the adjudicator to “unpack that.”
In addition to duty counsel tenants may turn to outside community legal clinics. It was explained
that clinics focus on “saving tenancies” and therefore mostly appear on behalf of tenants who
face eviction or have been illegally locked out, and even in these cases full representation is
provided only for those who exhibit a disability which limits the ability to self-represent, or in
cases that present a legal issue in which the clinic is interested.
LTB member reports of paralegal representation were very mixed, but somewhat more positive
than those of HRTO members interviewed. It was commonly noted that specialist paralegals
sometimes do a good job but are a minority. The quality of paralegal representation was
generally described as “poor” on the tenant side, but some “top notch” paralegals were reported
on the landlord side. As in HRTO interviews, some LTB members interviewed described some
parties as “under-represented” because, as one member said, “it is better to be uninformed than
wrongly-informed.” A very small minority expressed a contrary view, remarking that paralegals
who appear before the Board often have more expertise than tenant lawyers, and regulation of
paralegals has enhanced performance and professionalism.
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Among interview subjects, LTB members echoed CFSRB members in very often reporting that
the Board is accessible without lawyers, essentially “because it has to be.” These members
commonly linked accessibility to the simplicity of Board processes relative to the court system.
As with HRTO members interviewed, some connected accessibility to the specific characteristics
of parties and their disputes, remarking that the Board is accessible for self-represented parties
who are able to communicate clearly and to fully understand their disputes, but where there are
comprehension or communication problems, or complex legal issues such as bankruptcy,
representation is obviously helpful.
Similar to reports among HRTO members interviewed, concern was expressed by LTB interview
subjects that the public perception of Board accessibility is overblown, leading some applicants
to have unrealistic expectations as to the level of help they will receive from intake staff and
adjudicators. One LTB member reported that tenants sometimes expect members to tell them
how to “get the most out of the landlord.” Another perceived problem was that tenants
sometimes refuse to consult with duty counsel based upon an apparent assumption that enough
advice, assistance (or even just sympathy) can be elicited from the adjudicator to render legal
assistance unnecessary. Participating LTB members generally reported no significant changes in
the way parties self-represent as a result of online resources.
In reports that echo the dynamics of some family law disputes, it was reported that some parties
appear to crave the formal disapprobation an adjudicated outcome can convey. Indeed, one
member noted that both landlords and tenants use the Board to punish one another. Another
member volunteered that the LTB clientele has much in common with parties in high conflict
178
family law cases they start off in a mutually beneficial relationship, things go wrong, and they
end up in a destructive and interdependent relationship which they may nonetheless want or need
to continue.
More than participating members of any other tribunal, SBT members emphasized the fragility
of the Tribunal clientele. Hearings were described as often stressful and emotional due to the
subject-matter of income support due to physical or mental disability, and related depression or
other emotional problems. It was reported that members generally strive to ease the emotional
impact of hearings, although much depends upon individual adjudicators.
The percentage of self-represented parties in SBT hearings who have not received some form of
legal assistance was estimated among interview subjects at only five to ten percent. Although full
representation is not reportedly the norm, in contrast with the other tribunals studied, SBT
interviewees emphasized the availability of legal assistance for Tribunal applicants. At the outset
of SBT proceedings, appellants are reportedly informed by letter from the Tribunal that legal
assistance is available, and if the appellant is an Ontario Works (“OW”) recipient, the same
information is provided by an OW worker. If an appellant arrives at a hearing without a
representative, or without having received advance legal assistance, eligibility for free legal
assistance is reportedly discussed at the hearing stage, and proceedings are adjourned upon
request to allow time to obtain it; an estimated fifty percent of cases in which self-represented
appellants appear without having received legal advice are reportedly adjourned for this purpose.
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There are no onsite duty counsel services at the SBT; and as with LTB and HRTO proceedings,
the level of assistance provided by legal clinics varies. It was reported that the SBT has worked
with clinics to determine the best triage practices for SBT claims, and similar to the HRLSC and
the LTB clinics, full representation depends upon individual needs, such as language or other
communication barriers that affect the ability to self-represent, and the complexity of each case.
Although one member remarked, “Low income is a proxy for complex needs,” another asserted
that impoverished people with simple cases do not get full representation solely based upon low
income.
Similar to participating HRTO and LTB members, SBT interview subjects characterized partial
representation, or the “self-help” stream, as “lawyers adopting a coaching role.” Unlike duty
counsel, in this model lawyers are able to meet with parties repeatedly and assist in compiling
evidence. The extent of the assistance given within the self-help stream varies depending upon
the policies and practices of each legal clinic; some supply written submissions for every case,
but others do not. The coaching approach was consistently described as very helpful for
adjudicators, not only because of the improved quality of materials, but also because appellants
are made aware of weaknesses in the case before the hearing stage, are less likely to see the
adjudicator as the “bad guy,” and more accepting of the hearing process and result.
Full representation was reported as divided between specialist clinic lawyers and paralegals and,
in both categories, was described as “very, very good.” It was reported that among the small
minority of parties who appear without having had any prior legal assistance, some are highly
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competent, but it is rare for them to appear with case law or other indicia of having self-informed
through online resources, consistent with the reported characteristics of tribunal clientele.
As for the respondent government, submissions are made in writing through Case Processing
Officers (“CPOs”), and a CPO will attend in person in an estimated thirty percent of hearings,
although this percentage was reported as increasing.
In common with participating members of the other tribunals studied, SBT adjudicators
generally reported being comfortable dealing with self-represented parties, although one member
added that self-represented parties are not a problem because “there aren’t that many.” Echoing
some HRTO members’ comments with respect to active adjudication, one SBT member
remarked that self-represented parties require more preparation and are “more work.”
In response to the question of how the Tribunal prepares self-represented parties for hearings, the
focus among SBT members interviewed was less upon Tribunal processes designed to assist
(such as “hand-holding” at the intake stage) and more upon urging self-represented parties to
seek full or partial representation. Nonetheless, the ability of self-represented parties to navigate
SBT processes without a lawyer was reported as a goal that has been met through the skill of
adjudicators in dealing with a vulnerable population, and alternatively, as a phenomenon that
“just happens to be leaning that way.”
6.2 Informality
SJTO tribunals reportedly hold hearings in numerous venues, from well-appointed permanent
181
facilities to temporary forums – often hotel conference rooms, but reportedly, on at least one
occasion, a room located in a hockey arena complex. Needless to say, the level of formality
conveyed by the hearing setting is variable.
There were a range of responses in all tribunals studied as to the formality of the tribunal itself,
and the value of informality as a component of tribunal identity. Participating HRTO
adjudicators gave the most diverse range of responses as to the questions of both whether their
processes are formal, and whether informality is a positive value.
The CFSRB has hearing and mediation rooms at its Toronto offices, but it also uses HRTO
hearing rooms, located nearby, which have a slightly more formal air. The proceedings I
observed in Hamilton, Kitchener and Cornwall were held in hotel conference rooms, at U-shaped
or square conference tables with no architecture to suggest rank or territory. Several CFSRB
adjudicators interviewed remarked that it is beneficial for the decision-maker to be on the same
physical level as the parties, to facilitate eye contact and encourage interaction. In the course of
interviews, CFSRB members often remarked that it is a goal of the Board to be a “comfortable
place for self-represented parties.”
Informality was generally described by CFSRB members interviewed in terms of enhancing the
ability of self-represented applicants to function in a hearing environment. This was especially
emphasized by participating clinically trained members, who remarked that: anxiety significantly
affects the ability to relate to questions and formulate answers; people with mental health issues
“cannot live by rigid rules and processes;” the relative informality of Board processes allows
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accommodations to be made, such as slowing proceedings down; and, many applicants lack
“social capital,” often find themselves in situations where they feel unheard or overlooked, and
informality is vital to creating the sense of inclusion needed for effective communication. It was
commonly noted that Board processes are informal relative to courts; one CFSRB adjudicator
with litigation experience remarked that in courtrooms “we are still bowing to judges,” whereas
tribunal members sometimes debate whether it is appropriate for parties to arrive at hearings with
coffee and snacks (as they reportedly often do).
Participating CFSRB members commonly reported that the formality of hearings varies
depending upon the style of individual adjudicators and panel members. Several adjudicators
identified it as a personal goal not to intimidate self-represented parties, to be perceived as
“approachable” or “relatable;” several reports characterized Board hearings as “appropriately
informal;” and, one member characterized Board processes as “flexible within boundaries.” A
single member described Board hearings as necessarily formal (to establish authority) and
suggested that more formality would enhance Board credibility.
Perceptions of informality were most highly varied among participating HRTO members. On
one end of the spectrum, some characterized the Tribunal as “court-like” compared to other
SJTO tribunals, with adjudicators having a “traditional judicial role” within a “traditional
adversarial process,” and described the tribunal “essentially adversarial” and having “a certain
gravitas.” At the other end of the spectrum, HRTO proceedings were characterized as “unique”
in that members deeply engage with the parties through “trust-building” and extensive use of
active adjudication techniques. For some HRTO members “informality” implied a departure
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from adversarial processes, whereas for others it meant the freedom of adjudicators to run
hearings in any manner they choose, and for still others it was associated it with adjudicator
willingness to perform menial tasks such as making copies of documents and setting up
conference calls. Among members who saw the tribunal as informal, the reported benefits of
informality included efficiency as well as those reported by CFSRB members: self-represented
parties feel more comfortable and less defensive, and proceedings flow more easily. Among
those who perceived the Tribunal as formal, some expressed awareness of less formal
approaches within the Tribunal but considered them inappropriate for the Tribunal.
HRTO hearings were described as sometimes “unpleasant, grueling, charged, or draining,”
depending upon the parties and subject-matter, but not as “damaging” or an experience to be
avoided at all costs. Th stress of hearings was generally attributed to applicants having to re-tell
their stories and listen to the other side, often in the context of an ongoing relationship such as
employment, and applicants being subject to a system in which “others seem to be speaking a
different language.”
LTB hearing rooms visited for this project varied in tone; some were very similar to courtrooms,
with wood paneling and conspicuous territorial demarcations, while others had roughly court-
like architecture but were comparatively simple, even bleak, with heavily worn carpets and
furnishings.
There was relatively little diversity among interviewed LTB members as to perceptions of Board
informality; most members reported that Board hearings are formal. The courtroom-style set-up
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was noted, and hearing processes were described as traditional and adversarial. It was remarked
that: it is not a priority at the Board to put self-represented parties at ease; hearings follow a
direct/cross, direct/cross format with little departure except in accordance with personal
adjudication styles; adjudicators do not have any contact with parties prior to hearings through
case management or mediation, which was said to contribute to the formality of hearings. It was
noted that formality is required to prevent a “free-for-all” atmosphere; indeed, the LTB members
interviewed differed from members of other tribunals studied in that they did not report an
institutional ethic in favour of informality (whether observed or not) in the sense of adjudicators
being “approachable.” The personal style of adjudicators was cited as the only reason for this
kind of informality – it was reported that some members are “naturally informal” whereas others
are “diva-like.” It was remarked that a uniform style would not be desirable because people
“think differently” and process control is “empowering” as it contributes the sense of authority
needed to be an effective adjudicator.
Despite reporting relatively high rates of representation at some level, interviewed SBT
adjudicators commonly described hearings as informal relative to courts. The Tribunal’s process
was described as simpler and more relaxed than a court process, and manageable for people with
physical and/or emotional challenges. However, similar to responses in other tribunals it was
remarked that levels of informality vary depending upon the choices of individual adjudicators.
The atmosphere of SBT hearings was described by one member as “collaborative,” which was
attributed in part to CPOs not having a personal stake in proceedings, and rarely approaching
hearings aggressively.
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6.3 Active Adjudication
(a) Attitudes and Source of Authority
A range of adjudication styles was observed in the hearings attended for this project, and
interview subjects differed widely in their reports as to the purpose of active adjudication, how it
should be used, and under what authority it is permitted.
It is the beginning of day two. As seats are taken, coffee obtained and materials
organized, there is friendly banter between the foster father supported by the
children’s aid society, society legal counsel, and the CAS representative. The
empaneled Board members huddle and exchange materials. Across the table
from the CAS group the self-represented foster parents fidget, seemingly
conscious of their relative isolation.
The second witness is re-seated at the small witness table at the mouth of the U-
shaped table for cross-examination by the self-represented foster parents. The
foster mother begins her cross-examination by giving evidence, telling her own
story to contradict the witness’ testimony in chief. The Chair listens patiently for
a while, then finally interrupts, saying, “okay, you have to ask a question.”
The foster mother continuously struggles to elicit information rather than
provide it. She seemingly intends to review the details of every contact she has
had with the society, including with previous foster children. The Chair
indicates several times that she is having difficulty understanding the point of a
line of questioning or a series of assertions, and often suggests the phrasing and
content of questions. The foster mother’s lack of focus and apparent need for
vindication dovetail badly with the witness’ sometimes superior-sounding and
off-the mark answers. The Chair advises the foster-mother to break questions
into little pieces to make it easier to elicit a clear and specific answer and
repeatedly admonishes the witness to “answer the question, just answer the
question.” The Chair often interjects to ask the witness if she has a case note to
support her testimony, and the witness is often sure she does, but is unable to
locate it.
As the cross-examination stumbles along, the Chair increasingly takes control.
As the Chair asks more and more questions, CAS counsel begins to furiously
take notes, to which he attaches little red flags.
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Participating CFSRB members frequently described active adjudication as essential to addressing
the vulnerability of applicants in the face of power imbalances. As one member put it, “one side
knows it all and the other is totally disadvantaged,” and several adjudicators noted that a blend of
inquisitorial and adversarial approaches is needed to enable self-represented parties to effectively
participate in Board proceedings. It was almost universally reported by CFSRB the interviewed
members that the role of an adjudicator is to attempt to “level the playing field.”
The purpose of active adjudication was also frequently described among CFSRB interview
subjects as obtaining information needed to make a decision, which some referred to as “truth-
finding” (although others were dismissive of this term). Some CFSRB adjudicators characterized
active adjudication as a natural component of a “less formal” process, and it was
overwhelmingly reported as an essential tool for the application of the best-interests-of-the-child
test.
A majority of the CFSRB adjudicators who participated in this project reported that tribunals
have more authority than courts to engage in active adjudication, but there was no consensus as
to the basis for this authority. It was sometimes expressed as an assumption flowing from SJTO
training in active adjudication techniques, or as a general characteristic of administrative
adjudication. Some remarked that the authority of the Board relative to courts is unclear, given
that the “entering the fray” test “is identical” for courts and tribunals. One member reported that
engaging in active adjudication “makes you vulnerable” especially where respondent’s counsel is
aggressive, and there is a need to “think defensively” in terms of the potential for complaint or
judicial review. Others remarked: that any difference between active adjudication in courts and
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tribunals may be eroding as judges in some courts are becoming very active; the Board’s clinical
expertise lends itself to active engagement with the parties and the evidence; and, unlike the
HRTO, the Board has no specific legislated mandate to engage in active adjudication processes.
There was a consensus among CFSRB interview subjects that active adjudication is very
important to the work of the tribunal. Members with backgrounds in mental health and other
non-legal fields, referred to collectively here as “clinicians,” were particularly supportive of
active techniques, but generally described “entering the fray” is a legal concept upon which they
defer to fellow members with legal training.
Despite the HRTO’s express mandate to adopt active adjudication processes, not all HRTO
members interviewed reported using active adjudication techniques. Indeed, the most diverse
range of attitudes toward active adjudication was expressed by HRTO participants.
Among interviewed HRTO members who reported engaging in active adjudication, the purposes
for doing so, apart from the express mandate, included: efficient hearings, ensuring a fair process
for self-represented litigants, sympathetic concern over the cost of lawyers, obtaining necessary
information, and, “getting to the truth.” One member noted that unlike the court system where
“lawyers put on plays,” the job of adjudicators is to “get the facts needed to make a decision.”
Some of these members cited the specific mandate as a “safety net.” Some also remarked that
apart from the express mandate, tribunals have more latitude than courts to engage in active
adjudication because of administrative law norms. Indeed, it was remarked that in the absence of
an express mandate to cross-examine, the authority to question witnesses and the lack of any
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prohibition against asking leading questions is sufficient to allow adjudicators to cross-examine.
Some members described having had both applicants and respondents request an active process.
The minority of HRTO members interviewed who did not support the use of active adjudication
generally indicated they lacked the mix of litigation skills and strong personality needed to use
these techniques effectively or reported that active adjudication is inconsistent with their
perception of the Tribunal as formal and adversarial. At the extreme end of the spectrum, active
adjudication was described as “a confusing concept;” unfair to respondents who have hired a
lawyer and “spent thousands” and, “the flavour of the month.” The essence of the division
between active adjudication critics and enthusiasts is illustrated by one member describing a
traditional court process as “useless” for dealing with self-represented litigants, and another
describing HRTO proceedings as “just another kind of lawsuit.” Further explanations for
avoiding the use of active adjudication included: HRTO disputes involve private parties (rather
than government department or agency as respondent) and the Tribunal is therefore more like a
court than other SJTO tribunals; respondents’ counsel are often senior and specialized lawyers,
well capable of pushing back against active processes; and, as one adjudicator observed, “No one
wants to write a decision that is overturned by the Divisional Court.” The fact that tribunal
members may run hearings in a manner of their own choosing was seen as positive by many, on
the basis that members should only use processes with which they are comfortable. Others,
although a minority, expressed the view that Tribunal clientele should not have a completely
different hearing experience depending upon the personality and preferences of the adjudicator.
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HRTO interview subjects widely acknowledged the uneven use of active techniques at the
Tribunal; indeed, it was repeatedly remarked that the Tribunal does not have a “character” apart
from the personal adjudication styles of individual members. The most commonly cited reason
for this variance was, as noted, that active adjudication is “not something everyone can do,” but
overall pattern of interview responses suggests that experience and assertiveness are not
determinative – attitudes toward active adjudication were divided among both seasoned and
assertive adjudicators and newer, more tentative-seeming tribunal members.
In response to the question of whether active adjudication is important to the work of the
tribunal, the most common answer was (not surprising at this point): “It depends on the
adjudicator.” The minority of members who reported that active techniques are inappropriate in
the tribunal’s adversarial setting also reported that active techniques are not important to the
work of the tribunal. One member noted there is no “truth at all costs imperative” at the Tribunal;
another stated that the goal of respondents’ counsel is to win and factored into this goal the
expectation that self-represented (or less well-represented) applicants will be inadequately
prepared. At the other end of the spectrum, the importance of active adjudication to effective
tribunal functioning was described in highly enthusiastic and committed terms.
When asked whether tribunals have more authority than courts to engage in active adjudication
the common response among study participants was “yes,” based largely upon the Tribunal
mandate. Some differed, however, noting that the same test for apprehension of bias is applied to
both courts and tribunals, and active adjudication is therefore no more appropriate in tribunals
than in courts until, as one member said, there is “a memo to the Divisional Court.”
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There was no common thread in responses as to whether it is difficult to draw the line between
acceptable and inappropriate active adjudication strategies. Some members supportive of active
adjudication made it sound easy, saying “you just don’t descend into the arena,” whereas others
emphasized the need to “bring people along,” “tread softly,” and avoid any opportunity for
comparison between the Tribunal and a “Star Chamber.” Despite that the potential for judicial
review was frequently noted, formal complaints about the use of active adjudication were
consistently reported as infrequent.
Among LTB members interviewed, attitudes toward active adjudication were moderate and
supportive; I encountered neither enthusiastic advocates nor strong opponents. Some members
emphasized the limits of active adjudication, stressing that it is solely up to the applicant to
“make a case,” or remarking that the balance of probabilities should not tilt because of anything
said or done by an adjudicator. Others took a more expansive view, echoing the rationales
described by members of the other tribunals studied: clarifying information, addressing power
imbalances, moving things along, and, “Nobody who isn't a lawyer is comfortable with cross-
examination.”
Participating LTB members generally reported that active adjudication is important to the work
of the Board, despite that most of those interviewed characterized the Board as formal and
described hearing processes as traditional and adversarial. It was commonly considered that
adjudicators have more latitude than judges to engage in active adjudication, but as in other
tribunals studied, the basis for this authority and its extent were described as unclear.
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As noted, SBT interview subjects reported a relatively small percentage of self-represented
parties; nonetheless, hearings were described as informal and active adjudication was
characterized as “natural” in the context of the Tribunal’s mandate to deal with a “vulnerable
population,” and necessary to ensure that parties “feel heard.”
There was no common thread among the responses of SBT participants as to the source and
extent of tribunal authority to engage in active processes. It was remarked that tribunals do not
have more latitude than courts, but may, in general, “take active adjudication more seriously”
because of an orientation toward self-represented parties, but it was conversely maintained that
there is no difference between courts and tribunals in this regard.
(b) Active Adjudication Techniques
Mid-afternoon, day two, the self-represented foster mother’s cross-examination of
the second CAS witness is suspended to allow the child’s pediatrician, who has
limited availability, to testify. She is a witness for the self-represented foster
family. The self-represented foster mother begins her examination in chief by
asking the doctor some general questions. CAS counsel objects – the doctor has
not been qualified as an expert witness and therefore can only speak to her direct
experience with the child. The Chair assists the foster mother by suggesting more
specific questions. With the help of the Chair, testimony is elicited to the effect that
the doctor recommended feeding techniques for which the foster mother was
reprimanded by the Society. The doctor completes her testimony at the end of day
two. I leave the hearing room impressed with the Chair’s skill.
The following morning the self-represented foster mother is scheduled to resume
her cross-examination of the second CAS witness. Before she begins, the Chair
requests that she try to be more direct in asking questions “or we’ll be here in
September.” Questioning begins, and soon the witness is, once again, unable to
confirm her testimony in a case note. The Chair immediately intervenes, saying,
“you remember telling me yesterday you write everything down”?
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The Chair begins looking through her own notes from the previous day, which
have been highlighted and marked with tabs and red arrows. She asks a long
series of questions, frequently cutting off the witness and insisting “it’s a yes or
no answer.” The Chair questions the witness’ use of the term “report,” asking
“do you agree that “report” has a technical meaning?” She refers to the
doctor’s testimony, asking “what would you say to the fact that the doctor
says...?” “where are the doctor’s concerns reflected in your notes?” and “did
you talk to the doctor about food logs? I would suggest to you that you didn’t.”
The proceedings no longer feel informal or business-like, and nor do they
resemble an adversarial process.
After the Chair has completed her questioning a ten-minute break is called, after
which the Chair indicates she has a few more questions for the witness. She
looks through her notes for several minutes. The room is silent except for the
sound of turning pages. The Chair again quotes the doctor’s testimony and asks
the witness to comment. CAS counsel objects, saying he’s not sure the doctor
actually said that. The Chair moves on, directing the witness to a case note
which contradicts her oral evidence; when the witness suggests there must be
another relevant case note, the Chair replies, “I suggest to you there was no
other note.”
In addition to taking notes throughout the Chair’s questioning, CAS counsel has
been throwing incredulous glances at others in the room, including me. I avoid
meeting his eyes and aim for a blank expression. Upon the Chair’s suggestion to
the witness that “there was no other note,” he stands, saying, “with all due
respect,” he is increasingly concerned that the Chair has gone from being an
impartial adjudicator to an advocate conducting a cross-examination. He claims
she is displaying a “highly adversarial attitude” toward the witness, and that
there is a “distinct air of lack of impartiality.” He concludes by saying he
“doesn’t make these submissions lightly” and wishes to advise the Board that a
motion to recuse is being considered.
The Chair, visibly unsettled, replies that administrative tribunals have evolved
into the age of active adjudication, which is a legitimate exercise in the pursuit
of administrative justice, particularly when a self-represented litigant lacks the
skills needed to ask questions to which the Board needs answers. She notes that
the Board is faced with the profound question of the best interest of a child and
must be satisfied that it has the information required to assess the special needs
of this child. Without pausing, the Chair requests that the self-represented foster
mother resume her cross-examination. CAS counsel takes his seat.
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The self-represented foster mother again delves into the minutiae of the child’s
treatment in her care. The witness begins looking at the CAS representative as she
answers, seemingly seeking affirmation and reassurance. The self-represented
family notices this and asks the Chair to exclude the CAS representative from the
hearing room. The panel leaves the room to deliberate, returning shortly to rule
that the CAS representative may remain, but the Board takes seriously any attempt
by a witness to communicate with others in the hearing room. Eye contact between
the witness and the CAS representative is to be avoided.
The self-represented foster mother again resumes her cross-examination, now
attempting to discredit the witness’ testimony about her own personality and
demeanor, and soon is in tears. A break is called. When the cross-examination
resumes the self-represented foster mother puts more direct questions to the
witness, such as “did I ever cut a conversation short or refuse to talk to you?” and
“if I disagreed did I explain?” CAS counsel objects that the questions should be
yet more specific. The foster mother starts to defend her questioning, and CAS
counsel abruptly cuts her off. The Chair tells CAS counsel, “I am the Chair,” and
indicates that she will hear the foster mother’s submissions.
The Chair responds to the foster mother’s submissions by reminding the self-
represented foster mother to rephrase her questions to refer to specific occasions;
questioning again resumes. The Chair, seemingly finding the witness’ answers
vague, impatiently and repeatedly tells the witness to “just answer the question.”
Counsel again objects and is abruptly cut off by the Chair, who says, insistently,
that she is getting close to asking him to instruct his witness not to be evasive.
A ten-minute recess is called. The awkwardness that now enfolds the room can be
seen in the faces of all, save the apparently unflappable witness, as participants
file out of the hearing room in clusters.
Immediately after the break, CAS counsel addresses the panel. He stands,
presumably to underline the seriousness of the situation, and says he has
consulted with his client and wishes to put on the record the apparent bias of the
Chair against the current witness. His tone is exceedingly formal. He claims the
witness has been treated with condescension by the Chair; her answers have been
repeatedly cut off, and the Chair has exhibited “exasperated facial expressions.”
He asserts that the Chair has trespassed the limits of active adjudication by
conducting an aggressive cross-examination. Finally, he warns he may move for
adjournment, followed by a motion for recusal.
The Chair, her manner now also stiff, asks whether he’s making the motion or
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not. CAS counsel responds that he is not making the motion “at this time,” but is
“reserving the right to do so.” He is informed by the Chair that the right to
make any motion he wants is always available, and there is no need to “reserve”
it. She shuffles through the briefs and other materials on the table and in her
briefcase and locates a copy of the Statutory Powers Procedure Act. She riffles
through the Act for a few moments, then reads aloud section 13, which provides
that where any person, without lawful excuse, acting as a witness, refuses to
answer any question to which a Tribunal may legally require an answer, the
Tribunal may request by way of the Divisional Court that the person be found
guilty of contempt. The Chair reiterates that she told CAS Counsel this morning
to instruct his witness to answer the questions. She explains that in the event of a
motion to recuse, the panel will make its own ruling. Without inviting a
response, she announces that the hearing will now resume.
The self-represented foster mother, now looking worried and confused, perhaps
unsure if the foregoing exchange was helpful to her, or not, continues her cross-
examination. She asks the witness whether she has ever been dismissive in her
tone when dealing with her. After the witness has briefly answered this non-
specific question, the witness asks the Chair, “can I add to that?” The Chair
replies “No.” CAS counsel raises his eyebrows and shakes his head, keeps his
eyes averted from the panel, and again begins to take notes.
The foster mother concludes her cross-examination and indicates that her
husband would now like to ask a few questions of the witness. He holds up and
refers to a medical report. CAS counsel immediately raises two objections: the
witness is not the author of the report and it contains medical opinion evidence
provided by a doctor who is not in attendance. The Chair rules that the report
can be used for the purpose of questioning the witness; it will be decided later
whether it will be admitted as evidence.
The self-represented foster father commences his cross-examination, and the
Chair occasionally intervenes but is more restrained. CAS counsel appears to
be lost in thought. The witness now frequently asks the Chair, “am I allowed to
say this?” and “is it okay to say more?” After the self-represented foster father
has concluded his cross-examination, the self-represented foster mother
indicates she has a few more questions, which turn out to retread previously
covered territory. The Chair points this out, saying that any further questions
must be restricted to new matters. The foster mother refers to yet another e-mail,
requiring yet another search to locate it. When cross-examination is finally over,
the Chair remarks that the proceedings are taking longer than expected, and
several more days should be scheduled. CAS counsel replies that he has court
appearances scheduled, and limited availability.
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A wide variety of adjudication styles and active techniques was displayed in the hearings
observed, including within the same tribunal, consistent with reports of many interview subjects
that there is no typical style of tribunal adjudication. Despite the reported and observed
differences, some common techniques emerged. In several hearings, adjudicators adopted a style
I would characterize as “managerial.” Irrelevant evidence was swiftly cut off, parties, whether
represented or not, were questioned by the adjudicator, and when parties were represented,
counsel had less control over questioning and the flow of evidence than did the adjudicator.
Similarly, a common method for clarifying evidence was observed: following cross-examination
by counsel, detailed and probing questions were asked by the adjudicator, covering the same
material but allowing the witness to elaborate and give additional context to the evidence.
In a highly active hearing I observed, the adjudicator’s approach was obviously problematic in
terms of the opportunity for judicial review, yet also refreshingly transparent. It seemed to
convey to the parties: The Board needs to understand this, what you have to say about it? Can
you be completely clear? Do you have any documentation? What about what you said earlier?
What about what someone else said yesterday? It was bold, and it contained no trace of the
mystery and gamesmanship that can hover over traditional courtroom litigation.
Among participating CFSRB members, active adjudication techniques were generally reported
upon differently by clinician-members and those with legal training.
Lawyer-members interviewed tended to emphasize using active adjudication to directly question
witnesses and obtain better or more detailed information. While these members also noted the
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relative disadvantage of self-represented parties and the need to ensure they “felt heard,” the
emphasis among lawyer-members was commonly upon “truth-finding” and efficiency. As one
such member said, “The goal is to obtain information needed to make a decision; the reality is
that you find yourself asking the questions.” Others reported using active adjudication to
“question and instruct, but not to cross-examine;” or compared active adjudication to a client
interview in which questions are asked in a casual manner to elicit the salient facts, further
remarking that judges in family law cases are “not even close” to using a similar approach.
Specific active adjudication techniques described by lawyer-members included: taking more
control over the evidence than would occur in court, for example, asking if there is an email or
any other document to support an assertion, and if there is, allowing time to get it rather than
insisting on adherence to filing timelines; requesting updated evidence; insisting on written
statements from all witnesses in advance of hearings; and, conducting med/adj where it seems
appropriate and parties agree, despite that the Board has no express mandate to engage in
med/adj.
Clinician-members interviewed generally reported their role in hearings in therapeutic terms,
including: being aware of an applicant’s disadvantage and helping to ensure that hearings are
sufficiently accommodating; taking notice of body language and other cues that indicate a lack
of understanding; recognizing apparent mental or emotional problems and discussing them with
other panel members; noticing “wandering thinking” and trying to assist with focus and any
necessary clarification; encouraging patience among panel members if learning difficulties,
extreme stress or depression are observed; taking an active part in reducing unproductive levels
of stress by using simple language; and, intervening to slow things down, or suggesting a break
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in proceedings. As one member put it, the role is not to do a “clinical assessment,” but rather to
have “clinical perspective.”
It was common for participating clinicians to comment upon power imbalances and express
empathy for self-represented parties. Most reported feeling comfortable asking questions of
witnesses in the course of hearings, including in new areas that a self-represented party “has
failed to explore,” as well as questioning a witness about his or her background or qualifications.
One such member commented that an adjudicator must ask questions of witnesses or is “failing
to do the job.” A very small minority remarked that frequent interruption from any panel member
in the course of testimony is problematic for self-represented parties, who, it was said, function
best if allowed to tell their story with any necessary clarification sought at the end. It was
remarked that clinicians tend to engage more with the parties, to “stretch out” the story, ask more
personal questions, and do so in a “less legalistic” tone.
With respect to evidence, one clinician recounted requesting drug testing in one instance, and
requiring an applicant to consult with a neurologist in another. While one member stated that the
Board may order its own assessment of a child, another reported that the Board has this power,
but it is not used.
Some participating CFSRB members mentioned the need to get both sides to “buy-in” to active
adjudication at the outset, although this was not a common response. CFSRB members
interviewed most commonly reported clarifying the issues at the start of hearings, telling parties,
“This is what I need to hear about.”
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Despite the Board’s express mandate to utilize active adjudication techniques, many HRTO
members interviewed stressed the need to work toward a “buy-in” from both sides at the
beginning of proceedings or spoke of the need to gain the trust of the respondent community
with respect to the use of active processes by nurturing an understanding that they do not suggest
a preference for the applicant side. Some members described consciously adopting a non-
threatening tone and striving to establish a cooperative environment.
It was reported that self represented parties consistently give more information than is necessary
or relevant, sometimes to the point of making it difficult to discern the Code violation claimed,
and making it useful to ask questions such as: “Are you alleging X is a discrimination against
you because of Y? OK so that's the issue;” “I don’t see anything about X, will you tell me about
this later?” and “What box are you claiming to fit in?” The initial stages of a hearing were
compared to a lawyer/client interview with the applicant (a comparison also made by a CFSRB
member) at the end of which there is a clear list of issues, and after which submissions are
invited from the respondent. If new issues are raised by either side in the course of this process,
rulings are made as to whether they are relevant, and if so, consent is sought to include them.
Some HRTO members reported dispensing with opening statements, described as unhelpful
because self-represented litigants will “always start to give evidence.” Similarly, it was very
frequently remarked by members of all tribunals studied that self-represented parties are almost
universally incapable of effectively conducting a cross-examination, and instead tend to give
evidence. Some participating HRTO members reported having occasionally cross-examined
witnesses, “sometimes aggressively.” Specific cross-examination questions described as
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acceptable, include leading questions, such as: “Am I correct in saying you said X?”;
“Something you said doesn't make sense to me, how do you respond to that?” (instead of, “I put
it to you that you are lying”); and, in the face of conflicting evidence saying, “I want you to
know that when X was here he said Y, what do you have to say about that?” The rationale for
strategies such as these was described as ensuring that “the questions that need to be asked are
asked.” It was reported among HRTO members supportive of active adjudication that its
effective use requires a firm and complete understanding of all available information about the
case before the hearing or med/adj begins; all documents must have been filed, and all
prehearing materials, case direction notes, witness statements, and other materials must be read
in advance. Others simply described active adjudication as “more work.”
A more moderate approach to questioning witnesses was described by some members
interviewed, who reported assisting self-represented parties to conduct a cross-examination by
asking, “What are you driving at?” and then providing an appropriate question for the self-
represented party to ask. Members who reported a lack of enthusiasm for active adjudication,
unsurprisingly reported avoiding questioning witnesses, particularly during cross-examination,
and posing “neutral questions” at the conclusion of testimony. Among this group it was noted
that an adjudicator might “plug some holes” after cross-examination by a self-represented party,
but that this can be done “within the traditional adversarial model of adjudication,” and there is
no need for adjudicators to be “aggressive” in cross-examination as they are “not trying to build
a case.”
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Several participating members reported requiring written witness statements to enhance hearing
efficiency. Further evidence-related strategies included: suggesting a certain order of witnesses;
reducing the number of witnesses (for example, where a witness is being called to establish an
element of the case that has already been established); dispensing with disputes over
admissibility by accepting virtually all evidence and applying the rules of evidence to weight;
and, requiring a missing witness statement to be written “on the spot” by calling a hearing break.
In contrast to these assertions, other members reported that adjudicator control over evidence is
exercised “tentatively,” departures from the rules of evidence are predominately made on
consent, and restraining repetitive evidence risks judicial review.
It was commonly reported as unusual or inappropriate for HRTO adjudicators to request
evidence. Members reportedly cannot summon witnesses on their own motion but may suggest
to parties that certain witnesses would be of assistance, and may compel document production,
although there is no obligation to do so. One member remarked that if applicants claim damages
but provide no proof of loss, they are “out of luck.” Another remarked that many applicants fail
in their claims because of insufficient evidence, not because their claims are not conducive to
proof, but because the applicant does not understand how to prove the case or has failed to obtain
evidence understood to be necessary. As one member put it: it is not the role of the Tribunal to
“figure out what one side needs to make a case, and then allow time to go and get it.”
Several participating HRTO members volunteered that there is strong institutional bias against
adjournment, which some adjudicators strictly enforce. Examples of reported accommodations to
avoid adjournment or loss “on a technicality” include: allowing an applicant to amend pleadings
on third day of a hearing, and persuading respondent’s counsel to accept documents that should
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have been filed by a self-represented litigant, forty-five days prior. One member described
granting an adjournment to allow a self-represented party to obtain missing evidence, explaining
to the respondent that the evidence was needed for a “solid decision;” whereas another member
recounted denying an adjournment to a self-represented party who arrived without having filed
any materials, proceeding with the hearing request, and barring the self-represented party from
calling witnesses or submitting documents.
LTB members interviewed generally described moderate but assertive use of active adjudication
techniques. It was reported that members “try not to cross-examine,” but will directly question
“and challenge” a witness, if necessary. Some strategies echoed those reported in other tribunals,
such as asking a self-represented party, “You've claimed X, how do you plan to prove it?”
Similarly, it was reported as “no problem” to interrupt testimony, not just to clarify the evidence
given, but to focus the parties and exclude irrelevant material, for example, by asking, “How
does that fit in here? This is what I need to know.” As in other tribunals, the unproductive
combination of cross-examination and self-representation was noted; some LTB members
reported suggesting that cross-examination be skipped altogether.
Similar to the responses of some HRTO members, the interests of represented parties were noted
by some LTB members interviewed. One member remarked that if a witness is evasive, it is
enough to notice the behavior and draw an appropriate inference, that is, “there is no need to
insist upon clear answer.” Another commented that more inquisitorial powers would make
adjudication easier but would “not be fair.” Another member remarked that if a tenant exhibits
intrusive or inappropriate behaviour it is a very effective strategy to threaten a monetary fine.
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As in other tribunals studied, LTB members interviews commonly mentioned a strong
institutional bias against adjournment, and described allowing almost any evidence rather than
“going through the fuss” of explaining rules of evidence and applying the rules to weight. It was
reported that adjournments are sometimes granted for the sake of “fairness,” but not with
comfort, and one member remarked that fairness should be more important than efficiency. If a
new claim comes to light in in the course of a hearing, the potential claimant is reportedly
advised to withdraw and file a new application. If a new defense is discovered of which a tenant
was unaware, the tenant is reportedly referred to duty counsel. It was remarked that an
adjournment might be granted to allow a self-represented party to obtain missing evidence but
would never be granted simply because a party “was seeing the case unravel” and regretted not
being better prepared. Similarly, another member reported that if a self-represented party asks for
time to obtain important evidence, an adjudicator is as likely to say, “Your hearing is today,” and
proceed, as to grant an adjournment, depending upon the circumstances and the individual
adjudicator.
As noted, participating SBT adjudicators discussed active adjudication in terms of assisting self-
represented parties to “feel heard.” SBT members also described the importance of explaining
the role of a Case Processing Officer (“CPO”), so that self-represented parties “don’t feel
attacked;” being patient because “people meander;” balancing efficiency with letting people say
what they need to say (“up to a point”); and being aware of sub-cultural sensitivities, such as
discomfort with eye contact. SBT members reported curtailing repetitive testimony by
continually focusing the proceedings and doing away with closing submissions.
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It was reported that it would be rare for a SBT member to request new evidence of any kind, and
it would certainly “never happen” with respect to medical evidence, which was described as the
“sole responsibility of the appellant.” One member gave a contrary account, stating that an
obvious hole in an appellant’s case would be met with a suggestion that legal counsel be
obtained, followed by an adjournment.
(c) Limits of Active Adjudication
Participating CFSRB members consistently reported that complaints about the use of active
adjudication are infrequent. One CFRSB member recounted society counsel saying in the course
of a hearing, “If this was a court no judge would allow this;” and another mentioned a society
lawyer walking out of a hearing, but these were described as rare and isolated incidents. It was
reported that complaints about Board processes are usually resolved by immediate discussion
and mutually satisfactory process adjustments, not formal complaint or application for judicial
review. It was remarked that the Board periodically consults with stakeholders, such as children's
aid societies, and that this has helped the Board gain acceptance for its processes.
Clinicians more often than lawyers, reported it as difficult to restrain involvement in
proceedings. One clinically trained member remarked that it is tempting to become an advocate
for applicants, given that they often present as relatively powerless and isolated. Some Board
adjudicators emphasized the importance of active processes to the work of the Board; as one
member put it, “Adjudicators should not be afraid to do their jobs.”
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Similar to CFSRB members interviewed, participating HRTO members consistently reported
that complaints from parties and counsel about the use of active adjudication are infrequent. The
HRTO has an internal review process through which it may consider any complaints in advance
of the opportunity for judicial review. Despite the reported infrequency of complaints, it was
often remarked that clarity must be achieved with respect the treatment of active adjudication by
review courts.
Participating LTB adjudicators also reported that bias allegations stemming from the use of
active adjudication are uncommon, and when they do arise, are dealt with through an internal
review process that reportedly seldom leads to judicial review.
SBT members interviewed reported it as very rare for CPOs to object to active adjudication
strategies; one member recalled once being cautioned, but another remarked that there is
considerable room for the use of active processes because CPOs do not have a personal stake in
outcomes and are interested in efficiency. Consistent with this, another adjudicator reported “not
being very concerned about appearing to advocate for other side.”
Interviews with tribunal members were conducted shortly after the release of the Divisional
Court decision in Children’s Aid Society of the United Counties of Stormont, Dundas and
Glengarry v. S.V.D.
650
(“S.V.D.”). The decision was highly critical of the conduct of the CFSRB
650
Supra, footnote 608. [Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry v.
S.V.D.]
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proceedings under review; the court held that the duty of procedural fairness had been breached
in that the conduct of the Chair established a reasonable apprehension of bias.
651
The S.V.D. decision was discussed in most interviews, often raised by interview subjects in
tribunals other than the CFRRB. Responses to the decision were fairly evenly divided. Some said
the conduct of the Chair as reported in the decision was far too intrusive; one such member
remarked, “You cannot ask questions that take up 44 pages of transcript;” another noted that in
using active adjudication an adjudicator must “tread softly and slowly,” coaxing the parties
along, rather than “conduct an inquiry.” Conversely, some tribunal members (including non-
CRSRB members) said that the conduct complained of was not extreme, and questions of the
kind asked by the Chair and set out in the decision were asked “every day of the week” by
adjudicators in active proceedings. It was emphasized that there is a difference between
questioning a witness to obtain the witness’ response to apparent conflicts or inconsistencies in
the evidence or matters that require explanation, and “cross-examination” in a manner that a
lawyer might adopt – such as suggesting a witness is not telling the truth. Concern was expressed
that the former style of questioning may be perceived by a review court a form of “uneven
treatment,” particularly given that an adjudicator must ensure that all the evidence required to
make a fully informed decision has been obtained and cannot rely upon self-represented parties
to do so through effective cross-examination. Among those who disagreed with the Divisional
Court decision, some reported the decision as “shocking” on the basis that the court had
“ignored” the administrative law context of the decision, and it was remarked (again, among
651
Ibid. The court also held that the Board decision was unreasonable, at para. 131.
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non-CFSRB members) that the Board does not require an express mandate to conduct highly
active proceedings in an administrative law context.
In terms of future practice, many participating members reported concern about the S.V.D.
decision. At the extreme end of this concern, one member described feeling “muzzled,” and
another reported “pretty much giving up on the use active adjudication.” A more moderate
response was that the CFSRB will have to “regroup in order not to feel too restrained.”
(d) Levelling the Playing Field
It is unsurprising, given the wide scope of active adjudication attitudes and practices reported in
the tribunals studied, that some adjudicators reported “levelling the playing field” as a vital
tribunal function, while others swiftly rejected this characterization. The term itself seemed
charged; indeed, some members who described levelling the playing field as an illegitimate
tribunal goal nonetheless reported using highly active adjudication strategies.
Among interview subjects in all tribunals studied, CFRSB adjudicators most often reported
“levelling the playing field” as a legitimate tribunal function, consistent with frequent reports of
significant power imbalances in CFSRB proceedings. It was reported that self-represented parties
can be conspicuously “outmaneuvered” by children's aid society counsel, and that within the
relative informality of Board proceedings, it is appropriate, even essential, for adjudicators to
address power imbalances by deeply engaging in proceedings. It was further remarked that the
everyday role of children's aid society counsel is to act in child protection proceedings in the
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Provincial Courts, resulting in an adversarial orientation that is at odds with the Board’s
emphasis upon alternative processes.
There was no commonality among participating HRTO adjudicators as to whether it is the role of
an adjudicator to level the playing field. Responses included: “We take parties as they come;” it
is not the role of an adjudicator to educate self-represented litigants or to “help them” because
“there is a lot of information out there;” “Imagine if you had paid thousands for a lawyer and the
adjudicator rescues the other side,” and, “We are not going to be rescuing the applicant.”
Conversely, it was asserted by other members that the Tribunal “manages aggressive lawyers;”
ensures that core issues are addressed, even if one side is self-represented or under-represented;
and, “It’s not about who puts on the best show.”
LTB members interviewed did not emphasize power imbalances and, consistent with reports of
moderate use of active adjudication techniques, did not discuss active adjudication in terms of
leveling the playing field. SBT members commonly reported that in appropriate cases a
conscious attempt is made to level the playing field, citing the power imbalances inherent in the
client community.
(e) Active Adjudication Guidelines
There was generally support among participating HRTO and CFSRB members for active
adjudication guidelines. Most CFSRB adjudicators interviewed opined that publicly available
active adjudication guidelines would provide members with clarity and enhance the legitimacy of
Board processes in the eyes of the public and children’s aid societies. Some HRTO members
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who reported discomfort with active processes nonetheless supported active adjudication
guidelines on the basis that, as one member put it, “It would be nice to know what you’re
allowed to do.” Other HRTO adjudicators who described themselves as very comfortable with
active hearing process also supported guidelines on the basis that less comfortable members
would “have something to hang onto,” and with which to “push back,” while still others opposed
guidelines on the basis of not wanting “to be told what we’re not allowed to do.”
Participating members of the LTB were divided on the merits of active adjudication guidelines,
and SBT members generally reported uncertainty as to whether active adjudication guidelines
would be appropriate, mentioning the value of existing training in the use of active adjudication.
6.4 Multi-Disciplinary Panel Decision-Making
The CFRSB is unique among the tribunals studied in that it engages in multi-disciplinary panel
decision-making. The other tribunals studied recruit adjudicators with a range of background
training and experience, but reportedly use panel decision-making only in cases which have
ramifications for the development of the law or are otherwise exceptional.
There was extremely strong support among CFSRB members interviewed for the use of panels in
best-interests-of-the-child cases, and several members described it as “essential.” It was often
remarked that panel members complement and balance one another. Lawyer-members in
particular frequently reported a great deal of reliance upon, and comfort in, the knowledge and
experience of clinically trained panelists.
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At the hearing stage, lawyer-members remarked that the knowledge of clinicians is very helpful
in emotionally charged cases and those affected in some way by mental health problems. It was
noted that panels make it easier to avoid pitfalls like “reacting to personalities” and provide a
good “reality check.” It was remarked by one lawyer-member that panel decision-making
provides the Board with a more informed approach to best-interests-of-the-child determinations
than is available to courts. Clinician-members, on the other hand, reported deferring to legally
trained panel members with respect to process issues and the overall management of
proceedings, but were less emphatic than lawyer members about the need for panels in best-
interests-of-the-child decision-making. One clinician member, while noting there is “comfort in
panels,” expressed no “absolute preference” for the panel model, and another remarked that if a
single member were required to adjudicate a best-interests-of-the-child case, a clinician would be
preferable to a lawyer.
In the CFSRB proceedings I observed, it was clear that panel members were performing distinct
roles. The behavior of the lawyer-member was generally managerial and, in some instances
dominant, while the conduct of other panel members varied from almost complete passivity to
active engagement in questioning witnesses. In general, panel members gave the impression of
being part of a fact-finding mission not directed by parties or counsel.
At the deliberation stage, participating CFSRB members of all backgrounds reported multi-
disciplinary perspectives as valuable. Legally trained members generally reported deference
toward clinicians regarding behavioural, mental health, and child-centred issues; some said they
“absolutely deferred” while an equal number said they “somewhat deferred,” and as noted,
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clinician-members reported deference to lawyer-members as to the limits of active adjudication.
Despite reported areas of deference, the deliberation process was described as active, respectful
and collaborative, with panel members having “equal voices” and typically engaging in
extensive discussion. Both legally-trained members and clinicians reported “constructively
challenging” one another and cultivating an atmosphere of “respectful trusting” in order to
maximize the participation of all panel members. It was remarked that disagreements about
outcomes are dealt with by efforts to persuade, and dissenting views are never dismissed out of
hand.
The existence of “panel effects” which might undermine multi-disciplinary decision-making was
explored, and there no reports of "over-deference” to other panel members, or “strong” members
seeking to dominate deliberations, or more taciturn members too readily seeking consensus at the
expense of thorough deliberations. Just one member reported having experienced a panel
deliberation that was unpleasantly “conflictual,” and just one area of disagreement emerged:
some members reported that if no consensus is reached following deliberations, majority rules,
while others insisted that panels never operate on a majority-rule basis. Written dissents were
reported as rare, but nonetheless an option.
6.5 Best Interests of the Child
All CFSRB members interviewed reported that the Board is very comfortable applying the best-
interests-of –the-child test. It was specifically remarked that “the field is well understood” by the
Board members, and one clinician-member noted that in addition to having experience in child
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and youth work, some members have taught and/or applied the best-interests-of-the-child
concept in other institutional settings.
When asked what an ideally constituted panel for best-interests-of-the-child determinations
would look like, the common thread in responses of participating CFSRB members echoed the
format currently in place at the Board: one lawyer to give the panel legal process credibility and
authority, and two members with clinical backgrounds suited to the case. Preferences for the
training of clinical members included training in social work or psychology, with expertise in
special needs, parenting plans and mental health. One member remarked that social workers may
have the best qualifications for panel adjudication and are often under-rated as professionals.
6.6 Expertise and Internal Consultation
As the foregoing indicates, CFSRB members interviewed reported a high regard for the
knowledge and experience of fellow Board members. I was informed that members include, or
have included, psychiatrists, psychologists, social workers, teachers, and lawyers familiar with
court systems and/or child welfare systems, including the institutional dynamics of children’s aid
societies.
Although I did not set out to explore the effects of term limits on expertise, several CFSRB
adjudicators volunteered that term limits are problematic for the development and retention of
expertise, although one clinician, expressed the contrary view that term limits provide a good
opportunity for Board membership to be “refreshed.”
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Participating CFRSB members commonly reported that, on an informal level, expertise is
primarily built and shared simply by panels working together over a period of years. On a formal
level it is enhanced by regular conference calls and cluster-wide “Institutes,” in which members
of all SJTO tribunals receive professional development training. It was commonly remarked that
Institutes are not sufficiently targeted to Board issues, and while some members considered
conference calls a useful component of professional development, it was more often remarked
that they fail to foster either expertise or collegiality. One member remarked that conference
calls do not encourage the kind of dialogue that allows knowledge to be reinforced and
broadened, stressing, “This is a really important piece.”
Reports of informal communication among CFSRB members outside the panel context were
varied. Some members reported very frequent informal communications about problems and
perspectives, saying that members regularly reach out to members with different strengths in the
course of private deliberations, whereas others reported very little internal consultation, saying it
would be inappropriate to “poke into other member’s files,” or that they “don’t want to make
decisions for someone else,” and will only discuss “situations and experiences” in general terms,
without discussing case details.
HRTO membership is largely made up of lawyers, with training and experience in a variety of
areas of the law; however, as noted above, the Tribunal does not normally utilize panel
adjudication and is not “multidisciplinary” in the same sense as the CFSRB. Expertise is founded
more upon familiarity with Tribunal subject-matter than the contributions to decision-making of
diversely specialized members.
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It was commonly reported by participating HRTO members that formal consultation in the form
of quarterly mini-training sessions led by vice chairs are important and effective for building
Tribunal expertise, and bi-weekly meetings/conference calls where draft decisions can be
voluntarily shared were also described as helpful. In common with CFSRB members, it was
frequently noted by HRTO members that Institutes are too general and wide-ranging to be
effective, and that term limits inhibit the retention of institutional expertise; indeed, the very fact
of term limits was described as inconsistent with the concept of an expert Tribunal with a merit-
based appointments process. HRTO members generally described extensive informal
consultation; members referred to an “open door” atmosphere and “tons of” interaction and
exchange of ideas.
As with HRTO members, most LTB members are reportedly lawyers, and the Board is not built
upon multi-disciplinary expertise.
LTB members interviewed reported a high level of internal consultation both in a general sense
and regarding specific cases under consideration. Legal department circulations and quarterly
half-day training sessions were described as useful for allowing members to drill down on their
own legislation and discuss new issues, and Institutes were described as an effective “umbrella
approach” to professional development. The background training and experience of SBT
members seems especially diverse; membership reportedly includes many lawyers, but also
teachers, police officers, paralegals, social workers, administrators, and business people. Term
limits were not mentioned as problematic by SBT members.
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It was reported by SBT members interviewed that expertise is built by monthly teleconferences
and periodic circulation of Divisional Court decisions. The value of mentoring was noted, as well
as performance monitoring and random internal review of member decisions by Vice-Chairs.
Like LTB members, SBT members reported more positively upon Institutes as a professional
development tool. Descriptions of internal consultation were varied; SBT members generally
reported frequent internal consultation, but a minority maintained that internal consultation is
restrained by a need to ensure that members do not offload responsibility for the central task of
assessing the implications of medical evidence.
6.7 Soft Law and Structured Decision-Making
The tribunal members interviewed varied in the extent to which they described decision-making
as discretionary. Participating LTB members were the least consistent in this regard; although
several members noted specific and meaningful sites of discretion within their mandate, such as
imposing a payment plan upon a landlord based on a tenant’s circumstances, others described
their role as straightforward application of a statutory code. This discrepancy perhaps is
unsurprising, as an element of discretion is an inevitable part of decision-making
652
and may not
be reported as a distinct power. HRTO members more consistently described their decision-
making authority as discretionary, sometimes citing the need to interpret the “duty to
accommodate.” CFSRB and SBT members very consistently reported their decision-making as
discretionary, consistent with commentary which suggests that in settings involving
652
Supra, footnote 467 at page 302. [Pratt and Sossin]
215
conspicuously vulnerable populations, discretion is usually broad and the manner in which it is
exercised is enormously significant.
653
One of the questions for this project is whether a more structured “guidelines approach” to the
best-interests-of-the-child test is desirable or feasible in the context of an adjudicative family law
tribunal. For this reason, two potential sources of soft law were discussed with CFSRB members:
1) a publicly available digest-like record of significant tribunal decisions, appellate court
decisions, and frequently updated clinical research on the application of the best-interests-of-the-
child test, as a way of memorializing tribunal expertise and creating a tangible foundation upon
which to build further expertise; and 2) publicly available, non-binding guidelines for the
application of the best-interests-of-the-child test. Members of the other tribunals studied were
similarly asked to comment upon the potential for a digest or guidelines approach to decision-
making, but not in the context of a particular legal test.
A digest approach was met with approval by most CFSRB members interviewed. It was
remarked that while relevant Divisional Court decisions and some Board decisions are
summarized and distributed by the Board legal department, these cases often relate to process
rather than substantive law, and obviously do not reflect the blend of law and other disciplines
that is at the heart of the Board’s concept of its own expertise. Approving responses included:
“there is not enough downloading of experience and perspective” to allow Board expertise to
become “generalized to the Board;” a digest would be useful in non-panel adjudication;
“excellent members come and go” and it would be worthwhile to preserve their contributions; a
653
Supra, footnote 482. [Sossin, Discretion unbound]
216
digest would demonstrate to outsiders the Board’s commitment to informed and consistent
decision-making, and would enhance the Board’s public profile; and, it would be helpful for
training new members. The minority of participating CFSRB members who were opposed to the
concept of a Board digest indicated that it would fetter discretion. In the view of one such
member, any development that could be interpreted as a “best practices” approach would be a
problem, because “best practices are not best in every situation,” and may too readily used to
override the importance of, for example, cultural factors.
The response to best-interests-of-the-child guidelines was mixed; some felt they would be
helpful and appropriate, provided they were clearly non-binding, and others strongly emphasized
the importance of unfettered discretion. Positive responses (some of which echo reactions to a
Board digest), include: “Low-key guidance would be good, but it could never be a “ticks-in-
boxes” approach; “I would be happy to see it, possibly to the point of non-binding
presumptions;” guidelines would help to “even out” panels by extending the knowledge of more
experienced members; greater transparency would improve Board credibility; the criteria in the
CFSA are a “good list” but guidelines “could flesh them out from a conceptual and practical
perspective;” guidelines informed by social science and psychological perspectives as to the
impact upon child development of “surface conditions” such as cleanliness of the home, would
be very useful; and, an express focus upon the best-interests-of-the-child test would allow it to be
more thoroughly understood and consistently applied. Among those opposed to guidelines, again
upon the basis of fettering discretion, one member asserted that all development of Board
expertise regarding the best-interests-of-the-child test must occur as a consequence of the Board
absorbing relevant court decisions, because otherwise the Board risks adopting a policy role.
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Although one member volunteered that non-binding presumptions would be useful, there was
little common ground among members as to the merit of non-binding presumptions. Some
indicated support for attachment as the default primary factor, even to point of a presumption,
absent risk of harm, whereas others remarked that while guidelines would be helpful they should
not include presumptions.
Finally, participating members were asked whether unwritten “guidelines” currently exist in the
form of shared understandings about best practices in the application of the best-interests test.
Some legally trained members reported that such understandings exist with respect to “broad
principles,” for example, emotional bonds and status quo parenting are always “front and
centre,” and if this factor is very strong it will almost always overwhelm other components of the
test. Others remarked that certain adjudicators, who have worked together for a period of years,
have developed common approaches toward more refined aspects of the test, but this is not a
significant phenomenon on a Board-wide scale. Still others rejected the notion that shared
understandings exist, adding that any commonality in the approach to applying a discretionary
legal test would be a fetter on discretion. Among these members it was emphasized that internal
consultation concerning the best-interests-of-the-child test does not extend to discussion of how
it should be applied in specific cases.
Participating HRTO members’ responses to an internal digest were fairly evenly divided. At the
extremes, the concept of a digest-form institutional memory was described as “amazing” and,
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conversely, as “unwieldy” if not impossible to produce because there are “too many divergent
views at the Tribunal.”
HRTO members interviewed also responded unevenly to the potential for guidelines.
Enthusiastic members remarked that CanLII is a limited tool for searching procedural points;
guidelines on substantive law would be especially helpful with respect to nuanced concepts such
as the “duty to accommodate;” and, guidelines would help to compensate for the loss of key
people due to expired term limits. On the skeptical side, the concern was again fettering
discretion. Incidentally, the Ontario Human Rights Commission website, which contains
information that elaborates upon the Code was not mentioned by members and seems intended
only for public education purposes.
654
Despite the mixed responses to a digest or guidelines approach, shared understandings or
“institutional perspectives” on frequently encountered legal issues were reported to exist, and to
be nurtured by Vice-Chairs in quarterly mini-training sessions, and through bi-weekly
meetings/conference calls in which draft decisions can be voluntarily discussed, as described
above.
Neither a digest nor a guidelines approach was generally well received by LTB members
interviewed; just one member considered that an institutional memory or greater decision-
making guidance would be useful.
654
See online: ohrc.on.ca
219
Some participating LTB members remarked that the “Practice Directions” posted on the Board
website, which elaborate upon both process issues and substantive law, do not function as
guidelines; they are meant to inform the public, not to guide decision-making. Adjudicators are
reportedly expected to rely upon CanLII and legal department memoranda summarizing relevant
appellate and review court decisions. Some members described shared understandings as to the
circumstances in which members may depart from a strict application of the legislation; for
example, a payment plan is reportedly more likely to be extended, or an eviction delayed, in
cases where there is a long-standing tenancy or where children are affected.
Among SBT members interviewed there was no common thread in responses to a digest or
guidelines approach to decision-making. It was remarked that a digest would be useful but
impractical to maintain, as it would require frequent updating and refinement. It was further
noted that the existing “Hearing Handbook” effectively canvasses all recurring issues, and that
the Tribunal’s internal legal department effectively performs a guideline function.
6.8 Pre-Hearings and Mediation
The tribunals studied incorporate different mediation systems, and participating members
reported various styles. The responses of members interviewed in all tribunals studied suggested
that extending initial mediation to a further date was generally considered a negative outcome, an
indicator that settlement had not been swiftly achieved, rather than a positive indicator of the
depth of tribunal resources and mediator commitment.
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Almost all CFSRB members interviewed reported acting as both adjudicators and mediators.
Participating members described mediation as “built into” the Board process, in that pre-hearings
may be converted to mediation if the parties agree. Mediation, or “settlement facilitation,” is
reportedly strongly encouraged for section 68 claims, as there is often an ongoing relationship to
preserve between a children's aid society and a complainant and the Board has limited remedial
authority in any event. A very small minority described mediation as ineffective for section 68
applications because children’s aid societies are aware of the Board’s limited remedial authority
and have little incentive to meaningfully engage in mediation. The use of mediation to resolve
best-interests-of-the-child cases was reportedly strongly encouraged only for those in which
common ground is apparent at the pre-hearing stage.
CFSRB pre-hearings/mediation are scheduled for a day-long session, and may, in appropriate
cases, be conducted by telephone. It is reportedly possible to extend mediation by scheduling an
additional pre-hearing, although one-day sessions were generally described as sufficient. One
member remarked that the HRTO’s half-day approach would not be suited to the sensitive and
personal issues dealt with by the Board, saying, “It takes half a day just to get parties settled, the
issues agreed upon and understood, and productive discussions underway.” If settlement is not
reached, a mediation report is generated, which serves as an agenda for the subsequent hearing,
although new issues can be added even at the hearing stage.
CFSRB members who conduct a pre-hearing/mediation may preside over the hearing of the same
matter, provided the parties consent. This differs from the med/adj format utilized by the HRTO,
in which parties agree in advance of mediation that the member conducting mediation will act as
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adjudicator if settlement is not reached. It was reported by participating CFSRB members that
applicants “very rarely, if ever” obtain legal advice in advance of pre-hearings or mediation, and
respondent children's aid societies are generally accompanied by counsel both in mediation and
in hearings. One member remarked that Board mediation would be more successful at reaching
settlement if children's aid societies “did not bring their lawyers.”
The Board reportedly uses the pre-hearing/mediation stage to “educate” self-represented parties
as to the position of the party opposite, the applicant’s potential claims, information the Board
will need to make a decision, and the hearing process. It was commonly remarked that self-
represented litigants are increasingly well-informed at the hearing stage, which was attributed to
pre-hearing practices, as well as to increasing use of the SJTO website, CanLII and other online
resources.
Most CFSRB members interviewed described Board mediation as evaluative. Although one
member maintained there is no typical style of mediation at the Board, it was generally reported
that mediators do not hesitate to discuss options, remedies, likely outcomes of adjudication, and
“things parties haven’t thought of,” despite recognition voiced by some members that children's
aid society lawyers may see this as “giving advice.” One member stressed that mediators do not
suggest arguments or strategies to self-represented parties, but rather, inform them of what the
society needs to prove and what information the Board needs to make a decision. Another
member described the Board approach to mediation as “getting to the centre of the dispute.” In
section 68 matters, where, as noted, there is often an ongoing relationship to protect, the goal of
mediation was described as “building trust,” trying to get applicants to understand the children's
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aid society perspective, “bringing civility” to the relationship and working with both sides to
reach an agreement that will benefit their long-term relationship. Some members remarked that
evaluative mediation would not be appropriate for a med/adj process, and those who reported the
occasional use of med/adj at the Board noted that a less evaluative, more facilitative approach
was adopted in these cases to preserve the adjudication role.
Most participating CFSRB members reported that mediation is generally preferable to
adjudication. Some members cited the standard virtues of settlement: mutual buy-in, win-win
result, and better compliance. Others reported that a broader range of issues can be dealt with in
more depth, and self-represented parties are more likely to “feel heard,” particularly if emotional
problems suggest they will have difficulty “tolerating a hearing.” One member expressed the
contrary view that Board mediation is unsatisfying because applicants tend to concede too much,
leading the member to feel “complicit.”
In common with most CFSRB members, HRTO members reportedly act as both mediators and
adjudicators. HRTO applicants are asked to consider mediation at the application stage, either
independent of the hearing process or through a combined mediation and adjudication process
known as “med/adj.” Mediation is scheduled for a single half-day and may be conducted in
person or by telephone, pursuant to the telephone mediation pilot project referred to above. Some
members reported that a half-day session is often not enough. If settlement is not reached at the
conclusion of independent (non-med/adj) mediation, a hearing is scheduled before a different
tribunal member; in a med/adj process a hearing is immediately scheduled before the same
tribunal member if mediation proves to be unproductive.
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The med/adj program was overwhelmingly described in positive and enthusiastic terms by
participating HRTO members. It was said that med/adj is offered in virtually all cases, is strongly
encouraged, and a hearing without med/adj is now unusual. One member’s characterization of
the program as “massively successful” was not atypical; indeed, settlement rates were reported to
be as high as ninety-five percent, compared to about eighty percent for independent mediation. It
was remarked that some parties agree to med/adj to favourably impress the adjudicator and are
surprised to find themselves in a productive mediation process.
The high settlement rate for med-adj was attributed to mediators being more fully informed in
the med-adj context. Others cited the greater impact of mediator comments to the parties in
med/adj, due to the potential for a hearing before the same member. The most recently available
SJTO Annual Report sets out statistics on rates of representation in mediation and adjudication.
Although the Report does not separate med/adj and independent mediation, it indicates a higher
rate of representation in mediation overall than in adjudication and a much higher rate of
assistance from the HRLSC in mediation than in adjudication. No significant difference in rates
of representation based upon process was reported for respondents.
655
No institutional style of mediation was identified by HRTO members; as with active
adjudication, mediation style was described as a matter of the individual preferences of
655
Supra, footnote 580. [SJTO Annual Report] The Report indicates:
For mediation: 36% of applicants were represented by a lawyer or paralegal, 22% received assistance from the
Human Rights Legal Support Centre, and 40% were self-represented. Among respondents in mediation, 85%
were represented by a lawyer or paralegal, and 13% were self-represented;
For adjudication: 28% of applicants were represented by a lawyer or paralegal, 7% received assistance from
the Human Rights Legal Support Centre, and 53% were self-represented. Among respondents in adjudication,
86% were represented by a lawyer or paralegal, and nine percent were self-represented
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members. The range of reported styles was broad; some described a “folksy” or conversational
approach, others saw themselves as “swiftly evaluative.”
Adjudication and mediation are separate functions at the LTB; mediators are reportedly
unionized, and it was noted that adjudicators must be careful not to adopt mediation-like
methods in the course of adjudication. As noted above, the LTB has undertaken the CMH Pilot
Project in some locations, under which attendance at a case management hearing, presided over
by a dispute resolution officer who may be either a mediator or a case administrator, is
mandatory for all tenant applications. An applicant’s failure to attend a CMH may result in the
application being dismissed. A respondent’s failure to attend may result in deemed admission of
all facts and allegations pled, and a hearing conducted in the respondent’s absence. A CMH may
only be adjourned in “exceptional circumstances,” such as the need for accommodation under the
Human Rights Code, or a family illness or death, and this standard applies even to adjournment
requests made on consent. In cases where adjournment is allowed, the case may be rescheduled
to a new CMH or proceed directly to a hearing, at the discretion of the DRO or mediator
assigned to the hearing. Costs may awarded for failure to participate in a CMH if the result is a
delay in the resolution of the application.
A CMH may be conducted in person or by telephone; one hour is scheduled, and if no agreement
has been reached but settlement seems likely, a further CMH or “special mediation” may be
scheduled. If settlement neither occurs nor seems imminent within the first hour, the mediator
adopts the role of “case manager” and discusses the need to obtain evidence, file materials and
notify witnesses. A case manager reportedly may suggest appropriate documents or witnesses,
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“if asked.” One member stressed that once it becomes clear that a CMH will not result in
settlement, strenuous efforts are made to ensure a “tangible take-away” in the form of an interim
order (usually for disclosure), a statement of agreed facts, and/or a list of next steps.
Participating LTB members reported that parties are very often directed to duty counsel in
advance of mediation, or alternatively, mediation may be interrupted to allow time to meet with
duty counsel.
There was no common thread among LTB members interviewed as to the style of LTB
mediation. Some reported that LTB mediators typically conduct “interest-based” (facilitative)
mediation, the goal of which is “getting people talking,” and that mediators are generally not
sufficiently familiar with cases to adopt a “rights-based” approach. In contrast, one member
described interest-based mediation as, “a beautiful concept that mediators do not have time for,”
and maintained that a “legalistic approach” is more efficient, better suited to addressing power
imbalances, and appropriate for landlord/tenant disputes which at bottom involve “business
relationships;” the role of mediator was said to include “educating self-represented about legal
tests,” what to expect in a hearing, and how the Board has handled similar cases. Specific
practices described for accomplishing this reportedly include using a paper copy of online
practice directions as a manual for discussing rights and obligations, that is, to manage power
imbalances through equal access to information and tread the line between providing information
and giving legal advice.
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It was further reported by some participating LTB members that mediation is encouraged at the
Board for the sake of efficiency, not because it is a superior process or leads to better outcomes.
One member reported that tenants may well “get less” through mediation than they would
through adjudication; conversely, another maintained that most mediators would recommend a
hearing rather than encourage agreement on terms too far removed from legal entitlements.
Discussions with SBT members were focussed more upon adjudication and the availability of
legal advice and/or representation, than on mediation and settlement, although, as noted, the SBT
reportedly offers an early resolution opportunity presided over by an appeal resolution officer,
who is not an adjudicator, but rather an administrator trained in mediation. These sessions were
said to function like case conferences in the court system: as an opportunity to clarify the issues
and potentially settle. In the event that settlement does not ensue, the appeal resolution officer
becomes the appellant’s contact person at Tribunal.
6.9 Settlement Pressure
It is 9:10 a.m. as I enter a Landlord and Tenant Board hearing room, and
someone is speaking. I make my way along a sidewall and across the back of the
room and sit at the edge of a row of chairs in the least populated part of the
room.
The speaker is a woman who stands at the front of the room behind one of two
rectangular tables. She is talking about the role of Duty Counsel. It soon
becomes apparent that she is referring to herself. Her voice is authoritative, but
without edge. She gives the impression she has given this talk many times
before.
Duty Counsel moves on from explaining her role and begins to talk about the
Board’s mediation services. She emphasizes that parties “Do Not, Not, Not,”
lose the right to a hearing if they try mediation and fail to reach an agreement.
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She says parties can “come right back” to the hearing room if mediation “is not
working.” She uses a persuasive tone to inform the twenty-odd people assembled
in the room that there are “lots of upsides” to mediation; specifically, mediators
are not bound by the pleadings and parties can explore any issues they want in
any manner, and “Mediation is a win–win.”
Duty Counsel then outlines the shortcomings of the hearing process: the
Adjudicator will take a narrow view of the issues; parties can only talk about
what is in the pleadings; there will be no opportunity for negotiation. Duty
Counsel ends it there and leaves the room.
People clustered around the room in little groups begin to talk quietly. The
chairs, of which there are about eighty, are arranged in rows facing the front,
with an aisle down the centre. In the back row on the left side sit a couple with
two children who look to be between seven and ten years of age. A bald man
dressed in a suit sits in the front row near the door, flipping through a newspaper
spread out on the chair beside him. A woman with her hair in a tidy series of
long, thin black and blond braids sits behind him; next to her is a man wearing a
Greek fisherman’s hat, holding in his lap a large metal briefcase. A tiny middle-
aged woman with sharp features sits at the opposite end of my row looking tense
and impatient, as if she is anxious for the day to be over. Another woman of a
similar age sits a few rows ahead, wearing a lacy knit brown shawl that re-
arranges itself as she shuffles through papers on her lap. Some people fidget
restlessly, others look bored. Several people stare intently at their cell phones.
One man paces up and down the centre aisle. He is short in stature and his
clothing is stained and drooping. He wears a smudged safari-style hat, out of
which trails thin brownish hair. As he walks his fingers comb his thin goatee.
It is now 9:35 and the Adjudicator has not yet arrived. People continue to talk
quietly in little groups, read, look at their phones or do nothing. The Security
Guard, a reedy man who appears to be in his fifties, leaves his chair in the glass
anteroom and begins to pace up and down the left side of the room.
A woman wearing a tailored suit and a badge with the word “Mediator” on it
enters through the anteroom carrying a folded laptop and sheaf of papers. She
approaches a small group in the front row, asking if they want to try mediation.
They do not. She suggests they might want to just “give it five minutes.” They say
they are “past that.” The Mediator moves on to approach others in the room with
the same question. No one accepts her offer.
At 9:39 a.m. a woman enters the room through a secure door behind a long,
elevated dais located squarely at the front of the room. She sits at the centre of
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the dais, without looking up, and begins to look through the files she has brought
with her. After a minute or two, she looks up and says she will explain a few
things before hearings start.
The first topic is mediation. The Adjudicator repeats much of Duty Counsel’s
remarks on the availability of legal advice, and the Mediator’s talk about the
benefits of mediation, saying parties often find mediation more satisfying than a
hearing. She describes the hearing process as adversarial and adds that it looks
like it will be a long morning; many people on the list have shown up and
several have brought witnesses. She again suggests that while people wait to be
heard they investigate the other services offered by the Board.
Hearings commence with the Adjudicator calling an address. The Adjudicator
indicates that the landlord is to sit at a table on the right immediately in front of
the dais, and the tenant at an identical table on the left. The man wearing a
Greek fisherman’s hat moves to the tenant’s table, alone, and gruffly states he
wants advice from Duty Counsel. The Adjudicator asks if he has signed up for
Duty Counsel yet; he says yes. She nods, makes a note, and says she will “hold
the matter down a bit.” He leaves the hearing room.
The Adjudicator calls another address. The woman with black and blond braids
comes forward and sits at the tenant table. The woman in the lacy shawl sits at
the landlord’s table. Neither looks at the other.
The Adjudicator asks the tenant if she wants advice from Duty Counsel; she
indicates she does not. The Adjudicator asks if the parties wants to try
mediation, again saying it is a useful process; they both decline. The hearing
begins with the Adjudicator asking questions of the tenant. She recites events
apparently referred to in the pleadings and asks, “Could you tell me about
that?” She asks for information about the premises: How many bedrooms?
Furnished? How much is the rent?
As the Adjudicator is inviting testimony from the landlord, the Mediator re-
enters the hearing room. The Adjudicator notices her presence and interrupts
herself to announce that the Mediator is available “and willing” to review the
issues with anyone waiting to be heard. No one responds.
The Adjudicator goes back to looking through the file in front of her, as the
landlord begins to talk about being a cancer survivor. The Adjudicator
interrupts her to ask for copies of the lease and certain emails. “You have three
copies, right?” the Adjudicator asks. She does not. The Mediator, still standing
at by the dais, tentatively moves forward as if to offer to make copies. The
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Adjudicator’s manner abruptly changes; she turns to the landlord and says,
emphatically, “Listen to what I'm saying. I’m not interested in wasting your time
or my time. I'm not sending people out to make copies. We'll have a short recess.
There is a copy place downstairs. Go get prepared.”
The Adjudicator calls another address. This time only the landlord is present,
through a “landlord's representative,” a middle-aged woman who has just
entered the room wearing a green leather jacket and large gold hoop earrings.
She takes her place at the landlord’s table and confidently recites the absent
tenant’s spotty payment history. The Adjudicator’s demeanor is calm and
business-like. She makes slow and deliberate notes, seemingly unaffected by the
silence of a roomful of people watching and waiting. As the landlord’s
representative speaks the Adjudicator occasionally asks her to stop as she
locates a document in her file or makes further notes. She nods every so often
without looking up. She occasionally says “okay.” She issues an order for
payment of arrears in the form requested by the landlord’s representative.
A new address is called. The tiny middle-aged woman who had seemed so
impatient moves to the landlord’s table. She indicates that she has a witness in
attendance, who sits beside her. Again, the tenant is not present. The
Adjudicator notes this is the second appearance. The Adjudicator asks the
landlord if she wants to give evidence first or start with her witnesses. The
landlord elects to testify first and is asked to swear to tell the truth, and she
does.
The Adjudicator riffles through the file as the landlord talks about the difficulties
created by the absent tenant: loud swearing, unprovoked outbursts of anger and
bizarre behaviour. The Adjudicator interrupts to ask which unit is occupied by
the absent tenant. The landlord answers that it is the basement. The Adjudicator
says this information does not appear in the Notice. She says the Notice is
defective, she cannot proceed under a defective Notice, and the absent tenant
will have to be re-served and the process re-started. She explains that if she
orders an eviction on the basis of the defective Notice the whole address will
need to be evicted because the Sheriff will not know which unit is affected. The
Adjudicator says it is a shame that this was not noticed at the first appearance,
and she understands it is frustrating. The matter is adjourned. As the landlord
and her witness prepare to leave the Adjudicator says: “I know it doesn’t seem
fair.” No one replies.
The landlord and her witness walk toward the door, passing a man who recently
entered the room and has been observing the proceedings. She shakes her head
and grimaces as he mutters “this is utterly ridiculous.”
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The Adjudicator scans the room and asks if anyone is back from seeing Duty
Counsel. No one speaks or steps forward. The Adjudicator says she’ll take a
short recess. It is 10:15.
Most people stay in the hearing room during the recess. The Security Guard sits
at the end of a row and looks through the Toronto Star. The children in the back
row begin playing a clapping game. A man in a blue-black suit and oxfords, with
wavy graying hair and the air of a lawyer enters the hearing room and sits in an
empty row near the front.
At 10:25 the Adjudicator returns. She calls several matters. The parties are
absent or not ready. She quietly sighs and declares another recess.
People resume talking. I hear murmurs about wasted time coming from the front
row. There is quiet laughter between the man in the oxfords and a middle-aged
couple, who have just entered the room. The landlord in the lacy shawl returns
from making copies. She asks someone in the front row where the “judge” is.
At 10:37 the Adjudicator re-enters the hearing room. As she sits down, the man
in the Greek fisherman’s hat returns from Duty Counsel. The Adjudicator calls
his address, and he again sits at the tenant’s table. The man in the safari-style
hat resumes his place at the landlord’s table, removing his hat to reveal a long
Mohawk that falls from side to side as he moves his head. A younger man
dressed in a suit sits beside him.
The tenant is invited to begin. He explains he is “looking for” an adjournment.
He says he just received the landlord’s Notice and has a lot of paperwork to
review; he wants to raise an issue of his own; he is running out of money making
three copies of everything; he spent nearly $150 on the last hearing he attended;
his witnesses couldn’t come today. He asks, “I don't know if you recall my last
visit?” The Adjudicator nods and ever so slightly raises her eyebrows. The
tenant says the landlord has a “big force” representing him and has “unlimited
money.”
The Adjudicator asks why his witnesses could not attend; in reply he begins
talking about photocopies. The Adjudicator says “We are talking about
witnesses. That's all you're supposed to be talking about right now. Stop. Do you
hear me?”
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The Adjudicator then looks beyond the parties and addresses the room. She says,
“This matter will take a while” and again suggests mediation is “a good
alternative.” She says she would hate to run out of time and be unable to hear
everyone. She says, “the hearing room closes at 12:30 and if I run out of time I
run out of time.”
The Adjudicator turns to the man with the long Mohawk and says, “It’s your
turn.” He explains that the tenant will not give him access to the premises for
any purpose, even maintenance. He holds up a copy of a sign with the
handwritten words “NO ENTRY,” which he claims the tenant has posted on the
door. The tenant starts to speak, but the Adjudicator immediately turns to him
and says, “No. It’s not your turn.”
The landlord resumes talking. His testimony meanders. The Adjudicator says,
“Please answer the question I'm asking” and, looking at the man in the suit,
“I’m asking your representative to keep you on track.” The Adjudicator asks the
landlord to clarify when the NO ENTRY sign went up on the tenant’s door. The
landlord’s response is vague and rambling. The Adjudicator tells him he must
answer the question, or he will lose credibility. She tells him he isn’t making
sense. A woman seated among the spectators, several rows behind the landlord,
starts to answer the question. The Adjudicator raises her voice and says “Excuse
me, stop talking. You cannot speak when the witness is on the witness stand.”
She then addresses the landlord and his representative: “I'm going to give you a
few minutes to get yourselves together. I’m going to deal with a matter on
consent and come back to you later.”
The Adjudicator calls a new address. A group of people who have just entered
the hearing room approach the bench.
The man with the long Mohawk continues to talk to his representative at the
landlord’s table while the tenant in the fisherman’s hat gets up, takes his metal
briefcase and moves back to the first row of chairs. The Adjudicator talks to the
group seeking a consent order, who stand in front of the dais, and smiles as the
parties chuckle. The group leaves after a few minutes looking satisfied. The
Adjudicator looks down at the landlord with the Mohawk and his representative,
still at the landlord’s table, and tells them they have to move so she can deal
with another application.
The Adjudicator asks the landlord in the lacy shawl whether she has her copies.
She says she does, and she and the woman with black and blond braids take
their places at the appropriate tables. The photocopies are distributed. The
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Adjudicator notices that only one side of the lease has been copied. The
landlord explains that she asked the photocopy service downstairs to copy both
sides. The tenant with the braids exclaims “She’s had two and a half weeks to
prepare! She ought to have copies!” The Adjudicator, now more patient,
replies, “These things happen. I'm not going to wait another half hour.” She
hands the document to the security guard, who leaves the room, apparently to
make copies of the back of the lease.
The Adjudicator asks the landlord to talk about the emails she has filed. She
tells the parties she has to decide on a balance of probabilities whether a
tenancy has been created. She asks questions of both parties. The landlord talks
a great deal more about being a cancer patient. The Adjudicator nods
sympathetically whenever the landlord mentions her illness and says that what
she needs to understand is her living arrangements. The landlord is vague.
The Adjudicator reiterates that the first issue is whether or not the Act applies.
She says she finds it “more likely than not” that it applies, and therefore she
will hear the tenant’s application. The tenant with the braids lowers her head,
says a theatrical “thank you,” and begins to testify. She says the landlord has
repeatedly entered the rental premises without notice, and has on various
occasions removed the thermostat, cut off the cable and internet, turned off the
water, changed the locks and called the police to complain of noise in the
apartment. She is articulate, soft-spoken and organized. The Adjudicator seems
to appreciate the quality of the tenant’s presentation; she frequently nods and
indicates her understanding by saying “okay.” She often looks up from her
notes and watches the tenant closely.
The Adjudicator asks the tenant what remedies she is looking for. The tenant
says she wants to be reimbursed for sixty dollars she spent on a new internet
connection and requests a one-month rent rebate as compensation for the
difficulty she has suffered.
The Adjudicator asks the landlord in the lacy shawl if she is ready to respond to
any of the things the tenant has said. The landlord responds by talking about a
broken towel rack, exorbitant internet bills, smoking in the unit, garbage
everywhere and dirty dishes in the sink. When he has finished speaking, the
Adjudicator looks hard at the landlord as she tells the parties they will have a
decision within thirty days.
Others in the room have become restless. It is 11:35 a.m.
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Settlement pressure was generally not reported as problematic by participating CFSRB members.
It was said that pressure to mediate is applied in section 68 cases but is justified by the strong
advantages of mediation in these cases. One member reported that settlement pressure is not a
concern in any type of case, because even parties who have been pressured to mediate are often
pleased with the process once they are in it (echoing an HRTO member, as noted above) and
further because of the general superiority of consensual outcomes. Another member remarked
that settlement pressure is not a problem because “people are often disappointed at the end of
hearings.” It was stressed by some that although mediation is encouraged, members clearly
signal that it is voluntary. It was reported that “shuttle mediation” is used to check in with parties
during mediation to ensure comfort with the process and that any proposed settlement accurately
reflects “where they are at.”
In HRTO interviews, a significant minority of members expressed concern over settlement
pressure. Some of these concerns were related to its effects on members – it is reportedly seen as
a “failure” if mediation does not result in settlement. Participating members of both the HRTO
and LTB mentioned an institutional emphasis upon settlement statistics, some remarking that
members are under “unfair pressure” to maintain or improve their “stats,” a pressure which is
passed on to parties. One member characterized a practice whereby members are required to
contact parties who have not checked the “mediation box” to persuade them to mediate as an
awkward exercise in “pushing people.” Apart from the effects upon members, it was said that too
much emphasis upon settlement may detract from the important message that the Tribunal, at its
centre, is meant to provide principled adjudication. Conventional concerns associated with an
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emphasis upon settlement were also noted; that is, the law does not evolve, and human rights
become “privatized.”
As noted above, it was reported among LTB members interviewed that the Board is focused
upon high-volume, repetitive work. One member explained that adjudicators typically start a
hearing day with approximately sixty files; in about half of these cases a party does not show up
(often because the parties have settled privately); in the remaining thirty or so cases, some parties
are diverted to duty counsel, which can result in adjournment, and some take up the repeated
offers of mediation, which is reportedly essential for getting through the docket. Participating
SBT members reported no concern over settlement pressure. Hearings were described as highly
accessible, with more emphasis placed upon obtaining representation than upon settlement.
6.10 Access to Justice
Among tribunals members interviewed, accessibility was defined in various ways centred upon
providing assistance to self-represented parties, including: the relative ease with which processes
can be invoked; assistance provided at the intake stage; ready availability of mediation services;
for some members, active hearing processes; and, for a smaller number of members, the ability
to level the playing field. While a very small minority expressed concern that tribunal
accessibility may be over-estimated by the public, a strong majority of members across all
tribunals studied reported that accessibility, in the sense of the ability of self-represented parties
to manage tribunal processes, is a goal that has been achieved.
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6.11 Summary
This chapter recounts the reported responses of interview subjects, broken down by subject
matter and tribunal. Significant findings which suggest promising tribunal approaches to
problems identified in family law court systems include: 1) consistent reports among all tribunal
members interviewed of a high level of individual and institutional comfort in dealing with large
numbers of self-represented parties, often characterized as a vulnerable population; 2) emphasis
among participating CFSRB and HRTO members upon the value of work done by the tribunal in
advance of the hearing stage, including defining legal problems and identifying the evidence
needed; 3) the success reported among members interviewed of mediation processes “built in” at
the start of tribunal processes, with an adjudication fallback; 4) the reported use of information-
intensive mediation; that is, redressing power imbalances by ensuring equal access to
information using published best practices as a guide; 5) the use of blended mediation and
adjudication through med/adj; 6) the availability in some tribunals of specialized legal clinics
that provide different levels of assistance and/or representation based upon complexity and
ability to represent, often through a “coaching” role; 7) reports of the value of multi-disciplinary
decision-making, particularly by participating lawyer-members of the CFSRB; 8) common
support among participating clinician-members of the CFSRB for best-interests-of-the-child test
guidelines; 9) consistent reports among both lawyer and clinician CFSRB members interviewed
that active adjudication is an essential tool in the application of the best-interests-of-the-child
test; 10) common responses among participating members of all tribunals that the main purposes
of active adjudication are “getting the facts needed to make a decision” and assisting self-
represented parties; 11) the reported existence and nurturing of shared understandings or
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“institutional perspectives” on frequently encountered legal issues; and 12) no reports that
suggest hearing processes are “damaging” or to be avoided at all costs.
Further significant findings which suggest problematic aspects of tribunal decision-making that
could be useful in the conception of a family law tribunal include: 1) lack of consensus among
some participating tribunal members as to the fundamental character of the tribunal, whether it is
hybrid or adversarial, formal or informal; 2) uneven attitudes among members interviewed in the
same tribunal toward active adjudication, that is, uneven hearing styles – some members
interviewed reported using traditional adversarial litigation format, while participating members
invested in active adjudication reported dispensing with aspects of the adversarial model
including opening statements, closing statements, rules of evidence, cross-examination and direct
examination of witnesses; 3) lack of consensus among tribunal members interviewed as to the
basis for their authority to engage in active adjudication and what strategies are appropriate; 4)
reports of some participating HRTO members of a need to coax respondent lawyers to accept an
active hearing process despite the Board’s express mandate; 5) emphasis by some members
interviewed upon independence in the sense of adjudicators’ freedom to adopt processes with
which they are most comfortable, and the related acceptance of highly varied hearing practices;
6) limited use of voluntary onsite mediation services offered at the start of hearing processes; 7)
reports that self-informing is not particularly useful for vulnerable populations at the initial stage
of a dispute when the nature of a claim and the evidence needed must be assessed; 8)
acknowledgement of settlement pressure as potentially problematic due to pressure to maintain
“stats;” 9) an apparent diffuse fear of judicial review; that is, fear coupled with uncertainty about
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legitimate triggers for review; and, 10) the reported use of mediation styles based upon member
preferences rather than client needs.
Finally, a significant finding regarding potential tribunal processes relevant to problems
identified in family law court systems is that among participating members in all tribunals
studied, there was generally a divided response as to both a digest and a guidelines approach to
consolidating expertise and enhancing consistency, largely based upon concern about fettering
discretion.
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7. A TRIBUNAL FOR CUSTODY AND ACCESS?
The Family Justice Working Group Report begs the question: if the recommended reforms were
fully implemented, would there be any reason to explore the potential for alternative institutional
approaches to family law dispute resolution? American problem-solving courts, the LAT and the
Toronto IDVC suggest the same question: why consider a tribunal model given that family
courts already have been, in some jurisdictions and for some purposes, extensively reformed?
Indeed, from a vulnerability theory perspective, the institution is immaterial; it is the institutional
effects that count.
This chapter considers the potential for a tribunal system to meet assumed family law policy
goals, and within the limits of this project, noted above, reports and commentary with respect to
family court systems are interlaced with the discussion of tribunal potential.
For the purpose of this thesis, on the basis of the literature reviews and research reported above
the assumed goals of a tribunal-based family justice system include: the creation of an
administrative multi-disciplinary settlement system based upon a teamwork approach; a
secondary adjudication component that operates as a secondary, ancillary function, and is
identified as a modified inquisitorial model; the development and nurturing of institutional
expertise in the assessment of children’s interests and the application of the best-interests-of-the-
child test; the development and nurturing of institutional expertise with respect to domestic
violence; development of decision-making guidelines; and, exercising a policymaking role
through the principles of collaborative governance. Implicit in all of these goals are the broader
objectives of effectively dealing with large numbers of self-represented litigants through a
239
holistic dispute resolution system that does not inspire dread and does the utmost to protect
children.
As others have suggested, tribunal design itself must be “a holistic enterprise, involving the
expertise of policy-makers and lawyers, administrators and information-technology
professionals, organizational and behavioral specialists, and communication experts.”
656
This
chapter makes no such attempt; it is the culmination of a thought experiment and the discussion
is broad-brushed and hypothetical.
7.1 The Potential for Multi-Disciplinary Teamwork
It is noted in administrative law literature that an ideal tribunal design creates opportunities for
teamwork, division of labour and a “spirit of collegiality and co-operation.”
657
The rationale for a
multi-disciplinary teamwork approach to custody decision-making is perhaps best illustrated by
the knowledge and skills suggested as essential for family law judges, in addition to adjudication
skills and comprehensive knowledge of family law:
Judges must understand the complexities of family dynamics, including: the causes and
implications of family violence; other power imbalances within the family; and the
causes of alienating parental conduct. They need to also know about the effects of these
behaviors and attitudes on children and parents, and their ability to parent effectively. As
we have noted, multiple causes can underlie continuing conflict families, including
personality disorders, other mental health issues, substance-abuse, and patterns of
controlling behavior, and judges should be familiar with these underlying causes and
their implications.
Judges need to be familiar with child development theory and must understand how a
child can be adversely affected by conflict between the parents. They need to know about
the significance of hearing from children, as well as the short and long-term
656
Lorne Sossin, “Designing Administrative Justice” (2017) Windsor Y.B. Access Just. 87 at page 102.
657
S. Ronald Ellis, “Current Issues in Judicial Review of Administrative Action” Osgoode Professional
Development LL.M. Materials, Fall 2010.
240
consequences of not hearing from them. Judges need to apply this knowledge to the
particular family that the judges dealing with to determine what is happening within this
family, and what is required in the future to make the best interests of the children; this
identification of the real issues at stake is critical
Judges should have effective communication and management skills as well as other
dispute resolution skills. While attempting to facilitate settlement is always important, the
judge needs also needs to know when the decision is required and must be able to provide
a decision in a timely way. The decision must be understood by the parents and children
and rendered anyway that will facilitate compliance with the decision. Being able to
identify the continuing conflict cases, determine the nature of the problems and devise the
necessary solutions is not intuitive. Nor is the knowledge and expertise required learned
from ordinary family living experience. Making wrong choices can be harmful to
children. Judicial education, training, and experience in dealing with family cases are
essential if these cases are to be dealt with effectively and efficiently.
658
The foregoing is arguably too much to ask. Moreover, the overall approach is inconsistent with
the realization in many fields, as noted above, that the complexity of modern decision-making
benefits from an interdisciplinary approach.
659
An alternative to expanding judicial qualifications to include other fields is to locate adjudicators
within an interdisciplinary team. This approach is consistent with studies noted above that
suggest: “collegial decision-making” leads to “more principled” decisions
660
and panel members
with diverse backgrounds improve decision-making when information is deeply shared.
661
Moreover, the benefits of collaborative decision-making are increasingly recognized in the child
protection sphere.
662
658
Supra. footnote 206 at page 445. [Bala, Birnbaum, and Martinson]
659
See: supra footnote 564. [Kapeliuk, Collegial Games]
660
Ibid., at page 267. [Kapeliuk, Collegial Games]
661
Supra, footnote 566 at page at pages 1498-1499. [Quinn] See also: Kristina Klykova, “Bias in Arbitral
Decision-Making” 31(2) J. Int. Arb. 289.
662
Supra, footnote 567. [Nouwen]
241
Although England and Wales reportedly have a long history of attaching social welfare services
to family law systems,
663
the Norgrove Report describes a lack of trust and shared objectives
among component parts of the family justice system.
664
Perhaps in a similar vein, the Australian
Law Reform Commission Issues Report refers to submissions in which it is remarked that
available family services are “siloed” and navigating among them can be frustrating and
overwhelming.
665
While the OCL is recommended as a model for “an independent body tasked
with representing children’s interests” in the Australian Law Reform Commission Discussion
Paper,
666
it accepts less than fifty percent of the cases referred to it, and despite the
acknowledged value of its services, there is a tension, discussed in detail above, between reliance
upon outside assessments and judicial independence. In the same vein, the proposed creation of a
Family Justice Service within UK family courts “rang some judicial alarm bells;” the President
of the Family Division reportedly remarked that it raised significant issues of constitutional
validity.
667
It has been suggested in related commentary that by characterizing the Family Justice
Service as a “support for the judiciary” which can be “shaped” by senior family judges, the
Norgrove Report understates the extent to which decision-making may become shared with non-
judges in the new model, and glosses over the serious implications for judicial independence of
close multi-disciplinary teamwork within a court setting.
668
It has been remarked in the literature that a tribunal model offers the opportunity to utilize non-
judicial decision-makers “with the specific skills needed to deal with modern family
663
Supra, footnote 340 at page 238. [Doughty, Identity Crisis]
664
Supra, footnote 246 at page 340. [Doughty and Merch]
665
Supra, footnote 7 at page 80. [Australian Law Reform Commission, Discussion Paper]
666
Ibid., at page 174. [Australian Law Reform Commission, Discussion Paper]
667
Supra, footnote 246 at page 346. [Doughty and Merch]
668
Ibid., at page 347. [Doughty and Merch]
242
problems.”
669
The extent to which tribunal adjudication has potential to improve upon family
court systems may depend upon the value to policymakers of collaborative, multi-disciplinary
non-hierarchical decision-making in best-interests-of-the-child cases, and the capacity of tribunal
systems to provide it.
The natural justice requirement of judicial independence in a tribunal model is a factor in both
courts and tribunals; however, tribunals such as the CFSRB in Ontario and the PMH pilot project
in Australia, appear capable of integrating decision-making and multi-disciplinary expertise
through a skill-based division of labour and equal status among professionals. Although the data
generated here cannot be generalized to other contexts, for the limited purpose of recommending
further study I note that participating CFSRB members reported enthusiastically on panel
decision-making in best-interests-of-the-child cases, and both legally trained and clinically
trained members specifically remarked upon an atmosphere of mutual respect and appreciation
for the expertise of others. Having said this, a significant minority of members interviewed in
both the CFRRB and HRTO reported that informal internal consultation among tribunal
members is approached cautiously, out of a concern for fettering discretion. Recent commentary
also suggests that expertise is not always fully utilized in tribunals; while it serves a legitimizing
function at the creation stage of tribunals, it can be isolated from decision-making for fear of
compromising adjudicator independence.
670
In the result, a firm tribunal mandate could articulate
the difference between internal consultation and abdication of the decision-making role, and
validate the sharing of expertise among equals as a legitimate component of tribunal decision-
making, that is, teamwork.
669
Supra, footnote 40 at page 20. [Semple and Bala, Reforming the Family Justice System]
670
Supra, footnote 588 at page 2. [Jacobs, Reconciling Tribunal Independence and Expertise]
243
Australia’s proposed PMH pilot project is described as an administrative tribunal “designed to
provide a multi-disciplinary alternative to court proceedings for less complex children’s matters
where parents are not legally represented.”
671
The Australian Law Reform Commission
Discussion Paper reports a “mixed response” to the PMH concept among stakeholders; concerns
include a proposal to require leave in order to attend hearings with legal counsel, and a need to
ensure that at least one panel member has expertise in all forms of family violence and related
trauma, that adequate processes exist to help children and young people participate in the hearing
process and strong risk assessment processes are in place.
672
There is no apparent concern over
integrated multi-disciplinary decision-making; indeed, the Discussion Paper notes that in light of
the concerns noted above, stakeholder input is needed regarding ways of strengthening the
capacity of the PMH process, or otherwise developing a less adversarial decision-making
process, given strong support for a less adversarial approach to adjudication for families with
“complex needs.”
673
7.2 The Potential for a Settlement System
(a) Integrated Specialized Mediation
The HRTO med/adj process and the CMH Pilot Project suggest movement toward settlement
systems in which adjudication is a secondary, but accessible component of the dispute resolution
process. The CMH Pilot Project, as noted, requires mediation in the form of an information-
671
Supra, footnote 7 at pages 142-143. [Australian Law Reform Commission, Discussion Paper]
672
Ibid., at page 140. [Australian Law Reform Commission, Discussion Paper]
673
Ibid., at at page 144. [Australian Law Reform Commission, Discussion Paper]
244
intensive case management hearing run by a dispute resolution officer (who may be either a
mediator or a case administrator) for all tenant applications, and if settlement is not achieved a
report is filed; a similar approach is taken in the CFSRB; both mediation and pre-hearings are
followed by reports that inform subsequent adjudication.
A custody and access tribunal conceived of as a settlement system could experiment with any
number of variations on these programs. Their reported strengths, noted above, include: more
informed mediation; a tendency toward facilitative mediation, high settlement rates; and the
obvious efficiency of not starting over at the adjudication stage. Moreover,
“mediation/arbitration” is effectively used in private family law dispute resolution,
674
generally
toward the high end of family law practice.
Family courts have adopted blended settlement and adjudication processes, such as the “one
judge” approach in which a single judge mediates a pretrial settlement conference and also
presides over any subsequent trial.
675
The case conference process similarly provides multiple
opportunities for judges to encourage and assist with settlement, but it is up to individual judges
to determine the extent to which settlement is encouraged and how it is pursued, and what is
more, these sessions are not necessarily equivalent to mediation as not all judges undertake
mediation training. Others have noted that judges tend to be evaluative mediators and are not
generally highly suited for the facilitative style of mediation thought to be effective for family
law disputes involving children.
676
674
Supra, footnote 339. [Grant]
675
Supra, footnote 150 at page 318. [Semple, Judicial Settlement Seeking]
676
Ibid., at page 309. [Semple, Judicial Settlement Seeking]
245
A family court system could experiment with single-judge med/adj, provided it is presided over
by a judge (and not, for instance, a mental health professional with mediation training) regardless
of the requirements of the case. There is no constitutional barrier to judicial mediation in Canada
but the qualifications for appointment to the bench are based upon legal training and experience
according to statute, to say nothing of centuries of tradition. Again, it seems too much to ask of
judges that they must have knowledge and skill in family law, the art of judging, child
development and family dynamics (and particularly family violence) and also mediation.
As noted, in some Ontario courts, two hours of free onsite mediation is available to parties in
family law cases who are referred by a judge or Dispute Resolution Officer, as well as eight
hours of offsite subsidized private mediation. While these services are of course a positive
development, they are time-limited and not integrated with the judicial function.
677
Similarly, in
Australia, England and Wales and British Columbia, while mediation is required in advance of
filing a court application involving children (except in cases of family violence) the mediation
and adjudication functions remain, in different ways and to varying degrees, separate from the
adjudication process.
With respect to the potential for tribunal processes in family violence cases, I note that the
Australian Law Reform Commission Discussion Paper reports stakeholder submissions which
describe adversarial litigation in family courts as particularly inappropriate for people who have
experienced family violence, with some noting that it can “reinforce the destructive and
677
Supra, footnote 305. [Madsen]
246
traumatic experience of family violence and enable perpetrators of violence to continue their
abuse of the other party,” which, the paper notes, are consistent with findings of the Parliament
of Australia’s Standing on Social Policy and Legal Affairs Committee that “the existing
adversarial system for family law disputes is not appropriate to address matters involving family
violence” and “must be restructured and redesigned so that safety and accessibility are
central.”
678
It has been noted in the literature that in mediation of any kind, whether or not it is connected to
the courts, unrepresented parties may seek levels of advice or support that are inconsistent with
mediator neutrality, and self-represented parties may feel the process is unfair if mediators do not
assist them sufficiently, while represented parties may feel the process is unfair if they do.
However, in court-adjunct mediation in particular, parties may assume, rightly or not, that a
mediator will provide sufficient legal information and guidance to protect against an improvident
settlement.
679
Further, court adjunct mediation which offers short mediation times and focuses
upon disposing of cases quickly has been characterized as a “coercive” form of mediation that
ought not to be court-sponsored.
680
In a tribunal setting, mental health professionals and legally trained members could work
independently, collaboratively or in formal panels, and in both mediation and adjudication,
depending upon the needs of each case. The opportunities for process flexibility could allow for
targeted use of expertise, enable the effective use of elaborate forms of triage, potentially
678
Supra, footnote 7 at page 140. [Australian Law Reform Commission, Discussion Paper]
679
Supra, footnote 276. [Boyarin]
680
Supra, footnote 162 at page 892. [Murphy]
247
decrease delay and stretch resources, both as a consequence of time-saving and through the use
of a less expensively credentialed workforce.
(b) Interactive Information Services
While the parallel to family law is not exact, as noted above, among members interviewed in all
tribunals studied, a portion of tribunal clientele was described as obviously stressed, sometimes
with apparent mental health issues. It was reported that applicants in CFSRB processes are often
“in crisis” and have little or no understanding of potential claims, remedies or Board procedures,
all of which come to be understood through interaction with the Board. Within the HRTO
med/adj process and the CMH Pilot Project, an interactive information exchange process was
reported at the intake, pre-mediation and pre-hearing stages, and the manageability of tribunal
processes for self-represented litigants was often attributed to “institutional competence,”
including the “relationship-building skills” of intake workers. As pointed out in the literature, the
most active intervention, in terms of assisting self-represented parties, appears to occur in the
“subterranean elements” of tribunal processes.
681
While an interactive approach to distributing and gathering information contrasts with a
traditional court process, it may not differ substantially from the innovative court systems briefly
described in Chapter Two.
681
Supra, footnote 497. [Creyke] See supra, footnote 245. [Lillian Ma, et al. The National Survey]
248
(c) Legal Advice
The line between legal advice and legal information is easier to state than it is to apply,
682
and
along with this recognition, some distinctions have been suggested. For example: legal
information can answer questions such as “can I?” or “how do I?” whereas advice can answer
questions such as “should I?” Another formulation: legal information “outlines options and what
often happens,” whereas legal advice lays out “what will likely happen.”
683
It seems self-evident
that legal advice is preferable to legal information, to say nothing of full representation.
Family law scholars have described numerous potential ways of making legal services more
affordable, including appointing state-funded counsel, expanding legal aid, creating legal fee
insurance plans and encouraging “unbundling,” whereby legal services are retained for only
some aspects of a case.
684
Noel Semple has recently suggested the need for a “third revolution”
in family law (the first two being the development of comprehensive substantive law and the
widespread use of alternative dispute resolution), in which family law firms utilize innovative fee
structures, labour-division strategies and new service delivery models to make legal services
more affordable.
685
He writes that the progress made in substantive family law reform and the
expansion of alternative dispute resolution processes will not fully benefit all Canadians until
legal services become more accessible, as “most separating people will continue to want and
need partisan legal professionals to at least advise and often to represent them.”
686
682
Supra, footnote 2. [Macfarlane]
683
Supra, footnote 278. [Thompson, Judge as Counsel]
684
Supra, footnote 133. [Thompson, No Lawyer: Institutional Coping]
685
Supra, footnote 306 at page 131. [Semple, Third Revolution]
686
Ibid., at page 146. [Semple, Third Revolution]
249
Accepting that legal advice is a necessary component of access to justice,
687
vulnerability theory
(the lens chosen here) would suggest that responsibility for its provision lies with a “responsive
state,” and not with private industry (although changes in legal fee structures would be
enormously helpful in any event). The relationship between legal advice and access to justice,
and the boundary between private and state responsibility for legal services, has been addressed
by others in various contexts,
688
including in recent research that suggests “re-thinking what non-
lawyers can do.”
689
As noted above, duty counsel and advice counsel are available for twenty-minute sessions in the
Ontario family courts, and it is arguable that duty counsel services in particular are too last-
minute and perfunctory. A tribunal which has developed publicly available decision-making
guidelines, discussed in detail below, could use these materials as a foundation for interactive
explanation of the legal framework for decision-making, both at the intake stage and in
mediation. This work could be done by non-lawyers, as reported in the research here with respect
to the use of published practice directions in some CMH mediation. I suggest there may be
greater potential to expand the depth of legal information in a tribunal system, by virtue of its
greater distance, relative to courts, from traditional legal power structures. The information
provided could not, of course, answer the question, “should I?” but with the help of guidelines it
could effectively communicate “what often happens,” from which parties may be capable of
deducing “what will likely happen.”
687
Ibid., at page 138. [Semple, Third Revolution] The author writes “the premise of this article is that
“Canada’s family law firms (including sole practitioners) also have an essential role to play in the pursuit of
access to justice.”
688
See: supra, footnote 133. [Thompson, No Lawyer: Institutional Coping]
689
Supra, footnote 2. [Macfarlane]
250
(d) Legal Representation
Others have argued with respect to mediation that legal representation limits the parties' direct
participation and makes the process more contentious, thereby reducing opportunities for
problem-solving and relationship repair; and conversely, that lawyers ensure parties understand
how mediation operates and are properly informed of facts, through appropriate disclosure, and
legal entitlements, and protect against unfair agreements, improve the tone of mediation, and
assist parties to effectively communicate and keep emotions in check. Finally, it has been argued
that the effect of representation on mediation outcomes is actually fairly neutral.
690
There is research which suggests that legal representation is advantageous in tribunal
adjudication, but the use of active adjudication reduces the “added value" of representation.
691
The various ways in which legal advice and complete or partial representation could be made
available in a custody and access tribunal is a complex problem outside the scope of this thesis.
Again, the data reported here cannot be generalized; I simply note that: providing different levels
of advice and representation based upon the combined factors of complexity and ability to self-
represent was reported upon with approval among tribunal members interviewed, consistent with
an enabling approach to self-representation; and, moreover, legal coaching was reported upon
more positively by HRTO and SBT members interviewed than was duty counsel by LTB
members interviewed, which is perhaps unsurprising given that even minimal assistance in the
form of “coaching” allows, in at least some cases, for more than a single meeting, as well as
assistance in compiling evidence and drafting written submissions. In interviews for this project,
690
Roselle L. Wissler, “Representation in Mediation: What We Know from Empirical Research” (2010), 37
Fordham Urb. L.J. 419.
691
Supra, footnote 508 at page 63. [R. Thomas]
251
mixed reports of paralegal representation were given, as described above, but it should be noted
that permitting paralegal practice in family law cases was urged in a recent study which
examined the views of law societies across Canada as to paralegal practice and regulation.
692
7.3 The Potential for Fallback Inquisitorial Adjudication
(a) Inquisitorial Processes
It seems likely that an inquisitorial adjudicator could effectively and legitimately level the
playing field by exposing improper motivations, obtaining hidden evidence, interviewing
witnesses and restricting the number of expert witnesses. As noted above, I find it credible that
“truth-finding” is more closely associated with inquisitorial models, and that inquisitorial
processes practiced in a tribunal format do not equate to less fairness. Moreover, as noted
throughout this paper, the Family Justice Working Group Report recommends experimenting
with a modified inquisitorial model,
693
although this suggestion was presumably made with
reference to the family court system.
The relative capacities of courts and tribunals to carry out a mandate based upon inquisitorial
adjudication would likely depend, in part, upon the extent to which individual judges and
adjudicators enthusiastically adopt a new and seemingly more demanding judicial role. As noted
above, recent research has described judicial attitudes toward assisting self-represented litigants
in Canadian family court systems as variable,
694
and Canadian scholars have observed that
692
Supra, footnote 145. [Trabucco]
693
Supra, footnote 23 at page 9. [Family Justice Working Group Report]
694
Supra, footnote 133. [Thompson, No Lawyer: Institutional Coping]
252
“inquisitorial justice is not necessarily embraced by the judiciary.”
695
Despite that tribunals are
often designed with the needs of self-represented parties in mind, the research reported in this
project contains a similar finding; that is, some participating adjudicators described active
adjudication as something not everyone is capable of doing, or even wants to do, and others
simply stated that it is “more work.” In other jurisdictions, the Norgrove Report states that some
judges have expressed concern that a new Family Justice Service (which, as noted, places judges
at the head of interdisciplinary teams) would put “undue pressure on the judiciary”
696
Perhaps in
the same vein, as noted above, the Issues Report of the Australian Law Reform Commission
states that use of the LAT case management approach has “waned over time,” and further notes
that these processes may “consume too much judicial time,” given the persistent problem of
hearing delays.
697
In short, whether located in a court or tribunal system, inquisitorial-based
adjudication would have implications for training and recruitment, as discussed above with
respect to active adjudication. The advantage in a tribunal model may be that targeted
recruitment opportunities present themselves when institutions are re-built “from the ground up.”
Determining the ideal blend of new and existing processes for an optimally designed family law
tribunal is not attempted here; it may, however, be instructive in a general sense that, as noted
above, the LAT model was inspired by the German family court system, an inquisitorial system
that was designed to only dispense with “the worst aspects of adversarialism,”
698
and the recent
695
Supra, footnote 40 at page 15. [Semple and Bala, Reforming the Family Justice System] The authors report
that a group of Ontario family judges opposed a 2010 amendment to the Children’s Law Reform Act, on the
basis that it was inconsistent with “basic rules of procedural justice,” and recommended expansion of legal aid
or OCL services instead.
696
Family Justice Review, Final Report (the Norgrove Report) at page 52, online:
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/217343/fami
ly-justice-review-final-report.pdf
697
Supra, footnote 309 at page 65. [Australian Law Reform Commission, Issues Paper]
698
Supra, footnote 178 at page 842. [Langbein]
253
Australian Law Reform Commission, charged with redeveloping the Australian family court
system, repeatedly questions the continued use of adversarial processes in proceedings involving
children.
(b) Inquisitorial Identity
Within the context of the research reported here, an ambiguous institutional identity appeared to
affect the confidence with which inquisitorial processes, such as active adjudication and
managerial judging, are utilized, even among tribunal members who support them, and to create
a diffuse fear of judicial review. I reiterate that some HRTO members interviewed for this
project reported that the tribunal has no process identity apart from the preferences of individual
adjudicators, and despite that only a minority of members considered consistent hearing styles a
worthwhile goal,
699
lack of consensus as to fundamental tribunal identity seems sub-optimal.
Fairness is primarily a procedural value in administrative law, and often associated with the
predictability of legal systems.
700
Indeed, the tendency of hybrid systems to fail to live up to the
expectations of either adversarial or inquisitorial models has been noted,
701
and has been
attributed, at least in part, to the lack of an articulated, principled vision of tribunal identity, as a
foundation for hybrid systems.
702
A firm mandate to conduct inquisitorial proceedings seems to be an obvious starting point for the
credible use of inquisitorial processes, both to enable active hearing processes and signal a clear
departure from adversarial norms, that is, the natural tendency in non-Continental hybrid systems
699
Supra, footnote 373 at page 114. [Wright] and the literature suggests that a variety of hearing styles is
institutionally accepted
700
Supra, footnote 463 at page 294. [Sossin and Houle]
701
Supra, footnote 497. [Creyke]
702
Supra, footnote 290 at page 61. [R. Thomas]
254
for the adversarial paradigm to operate as a default framework against which the legitimacy of
inquisitorial elements are assessed, not only in judicial review, but in the day-to-day operation of
tribunals.
(c) Impartiality
Judicial neutrality is important in inquisitorial systems, but it is not assessed through party
control or judicial passivity; that is, by the appearance of judicial neutrality. Instead, allegations
of bias are assessed in terms of whether or not the decision-maker has complied with a “duty of
care,” or “duty to inquire,” pursuant to which adjudicators must obtain and scrutinize the
evidence “with all due care” at every stage of a proceeding, and failure to do so is a ground for
review.
703
The duty of care standard exists, in part, to convey the professionalism and integrity of
the decision-making body. Its emphasis upon thorough review of the evidence is not unique to
inquisitorial systems (although obtaining evidence is); it is similarly a ground of review to
overlook important evidence provided to the court in adversarial systems.
704
While the duty of
care is relatively straightforward in that it does not entail the projection of perceptions of fairness
upon a notional “reasonable person” and it does not equate a high level of engagement with
parties and evidence to impartiality, it is complicated by the need for the applicable duty of care
to be proportionate to the depth of inquiry.
705
For example, in some tribunals the duty of care
703
Jula Hughes, “Home Truths about Truth Commission Processes: How Victim-Centred Truth and
Perpetrator-Focused Adversarial Processes Mutually Challenge Assumptions of Justice and Truth” in The
Nature of Inquisitorial Processes in Adversarial Regimes, supra, footnote 281 at page 288.
704
R. v. Gray, 2012 ONCA 17; see also: supra, footnote 608. [Children’s Aid Society of the United Counties of
Stormont, Dundas and Glengarry v. S.V.D.]
705
Laverne Jacobs, Sasha Baglay, Melissa Kwok, Marla Mavrikkou, Ki Lin Tay, (2011) “The Nature of
Inquisitorial Processes in Administrative Regimes: Global Perspectives Research Workshop Report” 24 Can. J.
Admin. Law & Prac. 261 at page 262.
255
requires that decisions be “taken in the light of the best scientific information available and based
on the most recent results of international research,”
706
which clearly requires a high level of
commitment to tribunal funding, that is, state responsibility. For the purpose of discussion,
contrast this with the family court system, in which it is up to parties, the majority of whom are
self-represented, to provide all relevant information to the court; disclosure may be deliberately
incomplete or tactically delayed; the availability of assessments, their integrity and the ability of
judges to critique them are all potentially problematic, depending upon the circumstances of each
case; and, the constraints of “judicial notice” limit the literature a judge may consider apart from
what the parties (again, often self-represented) provide to the court.
It is a legitimate question whether judges, with their greater status, could exercise an inquisitorial
mandate more confidently than tribunal members, and attract less resistance based upon
perceptions of bias. Indeed, it has been noted that the effective use by administrative decision-
makers of active adjudication processes is hampered by a lack of conviction on the part of the
courts that active adjudication processes do not compromise the role of adjudicator as neutral
arbiter.
707
To the extent that courts may have more latitude to use active adjudication processes,
it does not, in my view, result from the application of legal principles. According to
administrative law scholars, intense engagement with the parties is considered, in general, to be
more acceptable in tribunals than in courts, due to the relatively flexible, expeditious and
informal nature of administrative adjudication; indeed, it has been credibly asserted that the
flexibility of administrative law under a Baker analysis supports “adjudicator activism” in some
706
Supra, footnote 703. [Jula Hughes, Home Truths]
707
See: Supra, footnote 705. [Jacobs and Baglay, eds., The Nature of Inquisitorial Processes]
256
contexts.
708
The foregoing assumes an adversarial foundation; that is, a need to reconcile active
adjudication with adversarial norms. In an inquisitorial model, the assessment of bias allegations
would not depend upon a review court’s determination as to the apparent mindset of the
decision-maker, for which the greater status of judges may be an advantage. A test for bias based
upon inquisitorial norms, that is, thoroughness of the evidence and analysis, seems less likely to
confer an advantage.
The optimal duty of care in inquisitorial systems varies with the depth of a tribunal’s
investigative function, which in turn depends upon social, political and economic considerations
as to how much of the dispute resolution process should become the responsibility of the state,
and in precisely which ways this shift should occur. These are fundamental questions which
require broad-based consultation, political engagement, and further study.
7.4 The Potential for Institutional Expertise
Adjudicators are relatively free from the restrictions associated with “judicial notice.”
709
Tribunal
members may deepen their expertise on matters before the tribunal through relevant literature, on
their own initiative, without the support of an expert witness.
710
Identifying the precise ways in which the expertise of mental health professionals could be
integrated in a tribunal model would require extensive consultation with the mental health and
family law communities. In general terms, there may be potential to reduce the need for outside
708
Supra, footnote 528 at page 5 (Westlaw). [Kristjanson and Naipul]
709
Supra, footnote 215. [Bala and Saunders]
710
Supra, footnote 576. [Macdonald]
257
assessments by applying the expertise of non-lawyer members to the evaluation of the parties’
evidence, enabling the “voice of the child” to be heard and, in appropriate cases, conducting
investigations. In cases for which outside assessment is required, in an inquisitorial system an
expert may be chosen and retained by the tribunal or court.
711
As noted above, the Family Law
Rules
712
have been amended to allow judges to appoint a single expert,
713
but in an adversarial
system this power cannot prevent a “battle of the experts” as parties may still hire their own
expert witnesses.
The potential for a multi-disciplinary tribunal to apply expertise to the best-interests-of-the-child
test has been discussed in this thesis in general terms, without analysis of this potential with
respect to specific factors, such as domestic violence. Janet Mosher has argued that a nuanced
understanding of domestic violence is required to improve access for justice for women.
714
She
writes that a pervasive “incident-based” approach does not consider patterns of coercive and
controlling behavior,
715
and results in a limited concept of “safety,” and failure to recognize that
abusers may strategically manipulate legal systems as part of a pattern of dominance and control,
through meritless applications for sole or joint custody, or tactics that engage criminal or
immigration law.
716
The need for decision-makers to grasp the full dimensions of domestic
violence is reflected in the proposed Bill C-78, referred to above; there may be more potential in
711
Supra, footnote 178 at page page 835. [Langbein]
712
Supra, footnote 28. [Family Law Rules]
713
Ibid., Rule 20.1(3) [Family Law Rules] See also Nicholas Bala, “Single Court-Appointed Experts for
Family Cases” Lawyers Weekly, January 21, 2012, Seventh Annual FL Summit Materials, Osgoode Library.
714
Janet E. Mosher, “Grounding Access to Justice Theory and Practice in the Experiences of Women Abused
by Their Intimate Partners” (2015) 32 Windsor Y.B. Access Just. 149 at pages 150-151.
715
Infra, footnote 722. [Bill C-78]
716
Ibid., footnote 714 at page 157. [Mosher]
258
an expert multi-disciplinary tribunal model to achieve a deep and clinically informed perspective
and to apply it consistently.
7.5 The Potential for Guidelines
(a) Structure and Best-Interests-of-the-Child Test
The insights of Fiss, Mnookin and Kornhauser discussed earlier suggest a fair settlement
environment requires that parties be uniformly aware of legal entitlements, which must be
specific enough to predict likely outcomes, and parties must not be deterred from pursuing these
entitlements by institutional factors. In other words, clear law and minimal risk associated with
not settling.
Criteria for the application of the best-interests-of-the-child test are currently contained in the
Divorce Act,
717
the Children’s Law Reform Act,
718
the Child, Youth and Family Services Act,
719
and in a limited manner in the matrimonial home provisions of the Ontario Family Law Act,
720
but it has been widely observed that these criteria lend little certainty to the application of the
test; they are neither prioritized, exhaustive, nor annotated, and as others have observed, they
create almost as much uncertainty as a simple statement of principle. Until the recent passage of
the revised British Columbia Family Law Act,
721
and the very recent proposed amendments to
the Divorce Act contained in Bill C-78,
722
which create presumptions only in mobility cases,
717
Supra, footnote 14. [Divorce Act]
718
Supra, footnote 155. [Children’s Law Reform Act]
719
Supra, footnote 363. [Child, Youth and Family Services Act]
720
R.S.O. 1990, c. F 3. [Ontario Family Law Act]
721
Supra, footnote 13. [B.C. Family Law Act]
722
Bill C-78, An Act to Amend the Divorce Act, the Family Orders and Agreements Enforcement Assistant
Assistance and the Garnishment Act, Attachment and Pension Division Act.
259
there have been no legislated or informal guidelines or presumptions in Canadian custody and
access decision-making.
723
The theoretical potential for a multi-disciplinary tribunal to coalesce available data into decision-
making guidelines is suggested here but given that “reality has a surprising amount of detail,”
724
whether this potential could actually be realized in a tribunal system is a question for further
research as to their social, political and legal feasibility. Having said this, I note that the
Australian Law Reform Commission Discussion Paper contains the following proposal for
“improved guidelines material:”
The Attorney-General’s Department (Cth) should commission a body with relevant
expertise, including in psychology, social science and family violence, to develop, in
consultation with key stakeholders, evidence-based information resources to assist
families in formulating care arrangements for children after separation that support
children’s wellbeing. This resource should be publicly available and easily accessible,
and regularly updated.
725
The best-interests-of-the-child test has always been treated as a special aspect of family law for
which structure is inappropriate, and it would be reckless to extend increasing calls for more
723
Ibid. [Bill C-78] The proposed amendments contains a list of factors that must be considered in the
application of best-interests-of-the-child test. Bill C-78 requires consideration, with respect to family violence,
of impact, seriousness and frequency, and whether there is a pattern of controlling behavior; any civil
protection orders, child protection orders or related criminal matters; it also requires consideration of the
child’s views and preference, if obtainable (consistent with existing statutes, caselaw and practice); and the
prior history of parental childcare. It requires parents to exercise parenting time and responsibility in a manner
consistent with the child’s best interests, extending the best-interests concept to a behavioral requirement on
the part of parents (section 7.1) and specifically requires that parents protect any child of the marriage from
conflict arising from divorce proceedings. It places a duty upon legal advisors to encourage the use of
alternative dispute resolution processes (section 7.7(2)) and provides that parties shall attempt to resolve any
matter that could be the subject of a court order through a “family dispute resolution process” (section 7.3). It
defines “family justice services” as public or private services intended to help persons deal with issues arising
from separation or divorce, seemingly creating a foundation for further court-related family services. Finally, it
revises family law terminology: “custody” and “access” are replaced with “decision-making responsibility”
and “parenting time;” “custody and access order” is replaced with “parenting order.”
724
John Salvatier, “Reality has a surprising amount of detail” (2017) blogpost,
http://johnsalvatier.org/blog/2017/reality-has-a-surprising-amount-of-detail
725
Supra, footnote 7 at page 55. [Australian Law Reform Commission, Discussion Paper]
260
structure in family law to this tangled area of the law, but for the Family Justice Working Group
Report recommendation that substantive family law be simplified, with “more guidance by way
of rules and presumptions, where appropriate.”
726
Given that legislated presumptions are
politically fraught, and the Supreme Court of Canada has a record of repeatedly declining to
engage with presumptions by refusing relevant applications for appeal,
727
the routine
development of decision-making guidelines as part of ordinary tribunal functioning suggests a
potentially practical avenue for providing “more guidance by way of rules and presumptions.”
In view of the long history of debate as to the relative merits of presumptions and relative
importance of various aspects of the best-interests-of-the-child test,
728
the suggestion to develop
guidelines and presumptions is not meant to imply they are an easy answer, or that any of the
presumptions discussed earlier is ideal, or that a collective orientation among mental health
professionals would naturally emerge. It is acknowledged that there is insufficient social science
data on many aspects the best-interests test, and controversy about the data which does exist. For
example, concepts such as “attachment,” “psychological parent” and “primary caregiver” are not
consistently defined of or understood, and perceptions as to their respective significance differs
within the clinical community.
729
As noted above, no consistent approach seems to have
developed among family service providers in UK family courts.
730
726
Supra, footnote 23 at page 9. [Family Justice Working Group Report]
727
Infra, footnote 732 at page 1 (Westlaw). [Thompson, Where Is B.C. Law Going?].
728
Supra, footnote 154 at page 85. [Warschak, Parenting by the Clock]
729
Pamela S. Ludolph and Mildred D. Dale, “Attachment in Child Custody: An Additive Factor, Not a
Determinate One” (2012-2013), 46 Fam. L.Q. 1 at page 3.
730
Supra, footnote 340 at page 237. [Doughty, Identity Crisis] The author attributes the lack of consistency, in
part, to fathers’ rights activists, who reportedly became a highly vocal client group, usurped time and
resources, and “distracted from a child-centered approach.” She reports that the same phenomenon has
occurred in Australia.
261
I note that tribunal members who participated in this project were asked to gauge the potential
for more structured decision-making in their own fields, and while responses were mixed, the
most consistent support for guidelines was located among clinically trained CFSRB members,
expressed with regard to the best-interests-of-the-child test. I do not suggest that this finding can
be generalized to all of family law; further study is needed to determine whether there is broad-
based support in the mental health professional community for a more structured approach to the
best-interests-of-the-child test.
The need for guidance in “mobility cases” was urgently argued long before presumptions were
included in British Columbia’s family law legislation and the proposed amendments to the
Divorce Act,
731
as was the difficulty of legislating in this area.
732
It was pointed out in support of
guidelines and presumptions that decision-making patterns could be deciphered in the case
law,
733
and indeed they were.
734
Decision-making patterns obviously exist in other areas of best-
interests decision-making; for example, the literature reports some consensus among mental
health professionals as to certain aspects of the best-interests-of-the-child test, such as the age at
which overnight stays with an access parent are likely to be seen as appropriate, depending upon
certain variables. Locating this sort of information in guidelines does not detract from
individualized justice; that is, clearly communicating “what often happens” does not prevent
731
See: Nicholas Bala and Andrea Wheeler, “Canadian Relocation Cases: Heading Towards Guidelines”
(2012), 30 Can. Fam. L. Q. 271; and Philip Epstein, “Case Comment on Karpodonis v. Karpodonis” (2006),
27 RR. F. L. (6th) 276.
732
D.A. Rollie Thompson, “Where Is B.C. Law Going? The New Mobility” (2012), 30 Can. Fam. L. Q. 235.
See also Nicholas Bala, Parental Relocation: Applying the Best-Interests-of-the-Child Test in Ontario” (2006),
22 Can. Fam. L. Q. 127.
733
Supra, footnote 731 at page 424. [Bala and Wheeler]
734
D.A. Rollie Thompson, (2011), “Heading for the Light: International Relocation From Canada” (2011), 30
Can. Fam. L. Q. 1 at pages 4-13. See also Nicholas Bala, “Canadian Relocation Cases: Heading Towards
Guidelines” Ibid.
262
parties and decision-makers from recognizing situations in which the usual outcome is not
appropriate.
In a court system rules and presumptions arrive by way of legislation or regulation, generated in
the legislative and executive branches. Tribunal-generated guidelines could function as a less
“blunt instrument” than legislation or regulation for refining and improving understanding of the
best-interests-of-the-child test, and a multi-disciplinary expert tribunal may have more potential
than the legislative branch or the ministerial level of the executive branch, to credibly and
apolitically develop a comprehensible framework for reasoning about custody and access.
(b) Guidelines and Discretion
It has been observed that the injection of “more rules” into discretionary areas of the law is often
intended to increase “individualized justice”
735
by decreasing the potential for arbitrary decision-
making. As noted above, this thinking has traditionally been reversed with respect to the best-
interests-of-the-child test, for which more structure in the form of presumptions or prioritized
criteria has been resisted, in part on the basis that it would detract from the “individualized
justice” enabled by broad discretion. Guidelines are not suggested here as a “more law” strategy
for limiting discretion with more rules;
736
in other words, it is not suggested that guidelines
should displace discretion, but rather, that clear law should accompany the exercise of discretion.
735
Supra, footnote 467 at page 307. [Pratt and Sossin]
736
Supra, footnote 467 at page 302. [Pratt and Sossin]
263
The values reflected in the demand for rule-based law are consistency and coherence;
737
the
resulting predictability is thought to enhance fairness, promote settlement and reduce costs and
conflict. As noted, Consolidated Bathurst
738
reinforced the importance of coherence in
administrative adjudication and has been interpreted as endorsing tribunal-generated guidelines
and other means if enhancing consistency of decision making.
739
It is disturbing that best-
interests-of-the-child should defy prediction, as the implications exceed mere consistency, as
discussed above. If the goal of family dispute resolution systems is not merely to press for
settlement, but, rather, to facilitate fair settlement, enabling public understanding of the central
test for decision-making seems essential.
From a vulnerability theory perspective, a guidelines approach could address the needs of the
“vulnerable subject;” to the extent that guidelines could effectively communicate “what often
happens,” the more risk averse party would be empowered in negotiations and mediation. In
cases that “cannot or should not settle,” the suggestion is not that discretion be constrained, only
that it be relocated. It seems obviously sub-optimal, if not irrational, to entrust a discretionary
power to determine outcomes for children to any professional reluctant or ill-equipped to
exercise it. Indeed, it seems uncontested that:
Being able to identify the continuing conflict cases, determine the nature of the problems
and devise the necessary solutions is not intuitive. Nor is the knowledge and expertise
required learned from ordinary family living experience. Making wrong choices can be
harmful to children.
740
737
Supra, footnote 68. [Rogerson, After Moge]
738
Supra, footnote 472. [Consolidated Bathurst]
739
Supra, footnote 463 at page 294. [Houle and Sossin]
740
Supra, footnote 206 at page 445. [Bala, Birnbaum, and Martinson]
264
The question of whether guidelines should be binding, or non-binding, requires expert input. For
the purpose of this paper, the potential for non-binding guidelines is considered. At the
adjudication stage, even non-binding guidelines could curtail the potential for discretion to be
used improperly, for example, as a vehicle for the external ideologies and class-based
assumptions of individual decision-makers,
741
as is claimed to occur with respect to the
idealization of the traditional nuclear family.
742
I urge further research as to the feasibility of a guidelines approach to the best-interests-of-the-
child test as they may have potential to clarify general expectations as to the application of the
test at the negotiation and mediation stages while retaining the discretion necessary to tailor the
application of the test to individual needs at the adjudication stage.
It must be acknowledged that not all family law scholars support placing custody decision-
making in the hands of mental-health professionals. It has been argued that neither judges nor
“mental health experts” are better able than presumptions to predict the future best interests of a
child,
743
that training in psychology is not simply not helpful in most cases, and that the best-
interests-of-the-child standard is based upon a misplaced faith in the ability of mental health
professionals to evaluate families and advise courts.
744
Martha Fineman has argued that divorce
has been redefined from a “legal problem” to an “emotional crisis,” which has allowed mental
health professionals to “hijack” custody decision-making.
745
As noted, these arguments are
741
Supra, footnote 467 at page 310. [Pratt and Sossin]
742
See: Supra, footnote 166. [Hughes, Mother’s Vicarious Hand]
743
Supra, footnote 156 at page 71. [Scott and Emery, Gender Politics]
744
Ibid. [Scott and Emery, Gender Politics]
745
Supra, footnote 230. [Fineman, Dominant Discourse]
265
paired with recommendations for presumptions, on the basis that they obviate the need for
psychological evidence, are a verifiable proxy for best interests, and can be applied by judges
without training in other fields.
7.6 The Potential for Collaborative Governance
A family law tribunal could be granted a policy-making role based upon “collaborative
governance,” pursuant to which the tribunal absorbs input on an ongoing basis, not only from
tribunal members, but also from the public, family law and mental health professional
communities and interested organizations, such as feminist and fathers’ rights groups.
Collaborative governance entails a multi-level policy process in which norms and practices are
continually reconsidered and revised in the light of broad-based knowledge and experience.
746
Opportunities have obviously expanded for diverse input through blogs and other tech-driven
formats. A broader base of policy input may have the potential to dilute the divisions between
identity-based groups by giving voice to wider range of perspectives, and in turn render
guidelines and presumptions more politically neutral. Moreover, transparency at this level could
provide a credible foundation for norm identification, norm reproduction, political
accountability, and public acceptance.
746
Supra, footnote 57 at page 88. [Nourse and Shaffer]
266
7.7 The Potential for Informality
Again, without suggesting broad application of the research reported here, I note there was more
consistency among tribunal members interviewed as to the value of informal processes
(compared to informal settings), and the value of informality in hearings was most emphasized
by clinically trained members of the CFSRB, who consistently noted a connection between
informality and the ability of a vulnerable population to function. With respect to the value of
informal settings, there was no common thread among interview subjects. Some participating
CFSRB remarked that being on the same physical level as the parties is useful for encouraging
interaction, whereas others preferred a more formal setting. It is perhaps instructive that the
initial, 1975, version of Australia’s “helping court” stressed informality; lawyers did not wear
formal robes, and “court registries” were set up to resemble storefronts.
747
The reported result
was disrespect for the court, including incidents of violence, which led to abandonment of this
approach and a return to formality, described as “proper court syndrome.”
748
I have argued above that consistent hearing style is an access to justice component and have
noted the potential for a settlement system, would naturally be relatively informal up to the point
of adjudication. The extent to which the adjudication component of a settlement system could or
should be informal relative to courts is a question for further research.
747
Supra, footnote 340 at page 232. [Doughty, Identity Crisis]
748
Ibid. [Doughty, Identity Crisis]
267
7.8 Potential Jurisdiction
The number of self-represented litigants in family law cases and their range of complexity
749
suggests, in my view, that an administrative settlement system might have benefits for a
significant proportion of cases. Its jurisdiction could begin with custody and access disputes;
however, once established, a tribunal could prove to be a preferable forum for the resolution of
a broader range of “ordinary cases;” that is, those which do not involve complex, non-child-
related facts.
Administrative processes seem well-suited to areas of family law other than custody and access.
To cite a few examples, child support could be dealt with administratively, indeed, movement in
this direction can be seen in the proposed Bill C-78, which provides that a provincial agency may
be established to calculate child support and require that it be paid, with disagreements resolved
by the courts. In a tribunal, a similar agency could operate as a department, and an inquisitorial
adjudication component could resolve disagreements. Support cases, both child and spousal,
often involve problems of income determination and financial disclosure that may be better dealt
with in a forum with an inquisitorial adjudication mechanism.
The threshold issue of entitlement to spousal support seems a suitable subject for information-
intensive mediation; calculations under the SSAG could be run at the intake and mediation
stages, based upon different assumptions if facts are in dispute. Simple property issues, involving
a matrimonial home and ordinary assets, could be dealt with by legally trained adjudicators up to
749
Supra, footnote 72 at page 343. [Payne, Recent Developments]
268
a designated maximum amount. Uncontested divorce applications, often processed by law clerks,
could be managed through an administrative arm and the perfunctory court process of reviewing
separation agreements could easily be accomplished in an administrative setting.
Barbara Babb, a long-time advocate of therapeutic family law processes, has written that family
functioning is of such critical importance to society that family law must be dealt with “at the
same level as courts of general jurisdiction.”
750
I would counter that the critical importance to
society of family functioning supports an alternative to courts, and that the Ontario Securities
Commission alone is sufficient evidence that complex cases can be decided in a tribunal
format. Having said this, intricate financial claims, for example, involving multiple properties
and investments, family-owned businesses, pre-nuptial agreements, diverse sources of income,
offshore assets, family trusts, bankruptcy claims, and so on, are far more suited to court
jurisdiction than the best-interests-of-the-child test. One possibility is to permit parties to elect
a tribunal process or a court process, except for custody and access disputes, for which a
tribunal would have exclusive jurisdiction; another is to set a limit on tribunal jurisdiction for
non-custody disputes based upon the value or complexity of claims. A third option is to equip a
tribunal to deal with intricate high-value claims; the potential drawback to this approach is that
the burden of these cases might overwhelm the essential mandate to provide swift and
therapeutic dispute resolution to a largely self-represented client population. In any event, the
only parties subjected to the prospect of dual proceedings would be those with significant
assets, and they would be inconvenienced only to the extent that custody and access issues
must be dealt with first through a multi-disciplinary tribunal process.
750
Barbara a Babb, “Fashioning an Interdisciplinary Framework for Court Reform in Family Law: Blueprint to
Construct a Unified Family Court” (1998), 71 S. Cal. L. Rev. 469 at page 516.
269
7.8 The Need for Further Research
The need for further research has been suggested throughout this paper; on a modest scale this
would include empirical research as to the experiences of Ontario tribunal users and family court
litigants, and the views of Ontario family court judges, lawyers and mental health professionals
as to the potential for tribunal system.
On a larger scale, a full comparative institutional analysis of the relative potential for courts and
tribunals to implement a therapeutic and holistic family law policy agenda could engage a wide
range of further research initiatives, including, but not limited to:
- analysis of resources that may be saved that might be realized in a tribunal system,
including a behavioural law and economics analysis;
- therapeutic justice analysis of the merits of panel decision making and non-judicial
single-member decision-making in best-interests-of-the-child cases;
- empirical research as to the level of support among mental health professionals for a
more structured approach to the best-interests-of-the-child test, up to and including
the development of guidelines and presumptions;
- empirical research as to the potential for a tribunal process to effectively deal with
domestic violence cases;
- analysis of whether and to what extent family services, such as counselling, can or
should be integrated or, conversely, located in a network of “hubs” as suggested in
the Australian Law Reform Commission reports and in the literature;
751
751
Supra, footnote 207. [Jacobs]
270
- analysis of family dispute resolution as a state responsibility, including the ways in
which governments in various jurisdictions deal with this responsibility, the extent to
which greater use of private mediation and arbitration save public resources and how
these are or could be reallocated;
- empirical research as to public attitudes toward inquisitorial adjudication in family
law, among research subjects informed of the how a modified inquisitorial
adjudication system could function;
- empirical research as to the views of family law lawyers and judges as to the optimal
blend of blend of adversarial and inquisitorial processes;
- feasibility study as to the ways in which legal advice and complete or partial
representation could be made available;
- feasibility study as to the development of best-interests-of-the-child decision-making
guidelines;
- study of the substantive law changes that might accompany a tribunal transition;
- expert analysis of the constitutional implications of tribunal jurisdiction in some or all
areas of family law;
- further analysis of the extent to which tribunals can issue contempt orders and swiftly
enforce tribunal orders;
- study of recent existing family court reforms in Ontario which have not yet generated
research findings;
- study of the benefits of the planned expansion of UFCs in Ontario; and
- study of the potential for electronic intake, mediation and hearing processes in remote
locations, for both courts and tribunals.
271
7.9 Summary
The potential for multi-disciplinary teamwork in a settlement system with interactive information
services, in which the legitimate boundary between legal information and advice is explored, has
been discussed in this chapter, and the potential for integrated specialized mediation services
with fallback inquisitorial adjudication has been explored. The potential to develop institutional
expertise in a tribunal format, and to develop decision making guidelines with respect to the best-
interests-of-the-child test have been considered. The potential jurisdiction of a family tribunal
has been discussed, and further research needs have been summarized.
272
8. FORCES AND OBSTACLES
There may be more room in family law than in other areas of litigation for the use of the
legal process to harm others, to serve less rational, more emotional, more conflictual
ends.
752
This chapter addresses some of the social forces and legal and political obstacles relevant to the
potential for a family law tribunal for custody and access. It reviews factors that informed the
transfer of jurisdiction over residential disputes from courts to the Landlord and Tenant Board,
and the progress of “therapeutic justice” as a goal of decision-making processes. Potential
obstacles in the form of a constitutional challenge and tribunal capacity to exercise authority are
considered.
8.1 Legal Thought and Paradigm Shifts
American legal philosopher Roscoe Pound long ago observed the “the inevitable difference in
the rate of progress between law and public opinion,”
753
which he described as a cause of
dissatisfaction with legal systems. A gap between law and public opinion is inevitable, of course,
given that changes in law require social consensus, the existence of which is not always obvious
and often contested.
754
Nonetheless, a durable gap invites analysis.
At the outset of this thesis a number of social and legal developments are noted which appear to
be indicative of a paradigm shift away from adversarialism. According to principles articulated
by Thomas Kuhn, a paradigm shift begins when too many anomalies occur within the dominant
752
Supra, footnote 231 at page 254. [Thompson, Are There Any Rules of Evidence]
753
Supra, footnote 175. [Roscoe Pound]
754
H.W. Arthurs, “Challenge and Response in the Law of Labor Relations” (1964-1966), 2 U. Brit. Colum. L.
Rev. 335 at page 335.
273
paradigm. The result is a “paradigm crisis” in which the familiar tools associated with the
paradigm no longer work (such as cross-examination, rules of evidence, and opening and closing
statements in proceedings with one or more self-represented litigant). During a paradigm crisis
there is a sense of casting about for new answers (such as alternative dispute resolution) and the
fundamental principles and ideology of the paradigm are questioned (for example, through
multiple studies on the experiences of self-represented litigants in adversarial court systems).
Despite that a paradigm shift signals change, it does not, as noted earlier, presumptively toss out
the old or, more poetically, reject “the cumulative disciplinary matrix.”
755
Many of the phenomena discussed in this thesis are suggestive of a “paradigm crisis” in Anglo-
American dispute resolution, particularly in family law. As cited in the introduction to this thesis,
these arguably include the large population of self-represented litigants, an institutional emphasis
on alternative dispute resolution, information programs that educate parents as to the benefits of
alternative dispute resolution, the American “problem-solving court movement,” the Australian
LAT, the reform recommendations in the Norgrove Report, the Ontario IDVC and further
Ontario initiatives such as Family Law Information Centres and court-adjunct mediation,
substantive law reforms contained in British Columbia’s new Family Law Act and similar
changes in proposed amendments to the Divorce Act, the relatively recent inclusion of multi-
professional and therapeutic approaches in law school curricula, and the rapidly expanding
application of vulnerability theory.
755
Supra, footnote 26 at page 100. [Stobbs, Juristic Paradigms]
274
According to Kuhn’s principles, paradigm shifts do not occur quickly, and they strongly depend
upon changes in ideology, the commentary of authoritative academics (some of which is reported
here) and a professional cohort trained in the new paradigm.
756
A paradigm reportedly moves
from crisis to “revolution” when a viable alternative is found to unite the threads that have arisen
in response to the crisis.
757
It has been observed that in family law, an abundance of practical and imaginative ideas for
reform have long existed.
758
The Family Justice Working Group Report attributes the
“implementation gap” in family law reform, in part to the “culture of the justice system.”
759
The
Canadian Bar Association’s Future of Legal Services Report more bluntly notes that the legal
industry is conservative and resistant to change,
760
and indeed, ideas for reform have co-existed
with adversarial decision-making systems and enmeshed, even unconscious notions about
adversarial justice. It is easy to imagine, for example, that family judges may be seen as
authoritarian, approval-granting (or denying) parent-figures, particularly given that a traditional
symbolic function of courts has been to moralize divorce. The unconscious acceptance of such
symbolism makes it difficult to depart from the ideology it supports, despite broad recognition of
ample reason to do so.
761
756
Supra, footnote 26 at page 142. [Stobbs, Juristic Paradigms]
757
Ibid., at page 103. [Stobbs, Juristic Paradigms]
758
Supra, footnote 75 at page 128, for a discussion of the “multi-door courthouse” concept, which originated
in 1976. [King, Freiberg, et al.]
759
Supra, footnote 23 at page 9. [Family Justice Working Group Report]
760
Supra, footnote 136. [Canadian Bar Association, Future of Legal Services]
761
Jane M. Spinak, “Reforming Family Court: Getting It Right between Rhetoric and Reality” keynote address
for the Washington University School of Law Ninth Annual Access to Equal Justice Conference, (2009), 22
J.L. & Pol’y 11 at page 22.
275
It would be disingenuous not to note that it serves lawyers and justice systems for the best-
interests-of-the-child test to remain amorphous, or, as one author put it, as specific as the
expression “long as a rope.”
762
I do not suggest that professional protectionism entirely explains
resistance to reforms that go to the heart of existing legal structures, but it must be acknowledged
that the legitimate interests of the legal profession as producers of legal services can “block
consumer welfare reform.”
763
Regardless of the reason for the apparent hold of court systems
upon family law in spite of avalanches of criticism and decades of unsatisfactory reform, the
power of information technology to change the way almost everything is done may, ultimately,
sufficiently loosen the bonds between adversarial ideology and the collective unconscious to
make way for a different path.
In The End of Lawyers?
764
it is argued that fundamental change to legal structures is an
inevitable consequence of new values centred on “efficiency,” which it defines as the ability of
individuals to break through knowledge barriers in order to better understand and control their
own circumstances.
765
The author observes that speed and efficiency have replaced formality as
the primary value in both communication and information gathering, and argues that traditional
approaches to legal services which benefit from a monopoly on information increasingly seem
antiquated, as do systems that fail to empower those who have informed themselves. Indeed, the
Canadian Bar Association’s Future of Legal Services Report notes that client empowerment is
the most important recent change affecting the practice of law, although it must be noted that it
762
Supra, footnote 157. [Aviel]
763
Supra, footnote 16 at page 9. (Westlaw) [Roach and Sossin]
764
Supra, footnote 137. [Susskind]
765
Ibid. [Susskind]
276
describes a possible exception for criminal and family law.
766
I do not suggest that the need for
lawyers in family law has been or could be eliminated, on the contrary, lawyers are clearly
essential in complex family law cases. There is, however, no inconsistency in recognizing this
fact and also suggesting the emergence of ethical demand for legal systems built upon
recognition of the “vulnerable subject.”
In law, easy access to information occurred shortly after the emergence of new norms that no
longer moralize the fact of family dissolution,
767
and roughly in step with even newer norms
that communicate disapproval of family dissolution that fails to adequately safeguard the
“separated family,”
768
rendering the moralizing function of the court system not only irrelevant,
but self-satirizing. Further, as Mnookin and Kornhauser maintain, the ritual and ceremonial
aspects of court systems can hardly be meaningful in the context of uncontested divorce, which
is to say, most divorces, as the parties rarely attend proceedings and courts only conduct a
cursory review of private agreements. The authors liken the process to “a civil fine imposed on
a divorcing couple – a fine payable not to the treasury but to the divorce bar.”
769
Finally, Julien
and Marilyn Payne predict, “the uncontested divorce under the auspices of the judiciary is on
its last legs.” The authors suggest that administrative divorce will replace desk order divorces
currently processed on affidavit evidence, “provided that section 96 of the Constitution Act can
be overcome.”
770
I suggest that all of this may at some point add up to ethical demand for
administrative processes in family law areas other than custody and access.
766
Supra, footnote 136. [Canadian Bar Association, Future of Legal Services]
767
Supra, footnote 37. [Carmichael]
768
Ibid. [Carmichael]
769
Supra, footnote 147 at page 992. [Mnookin and Kornhauser]
770
Julien D. Payne and Marilyn A. Payne, Canadian Family Law, Fourth Edition, (Irwin Law Inc., 2011) at
page 12.
277
The primary policy rationale for creating the LTB was to relieve the problem of self-
represented litigants “clogging the courts,” and to address the perceived need for a system
capable of efficiently dealing with large numbers of similar claims.
771
The policy rationale for
the Ontario Labour Relations Board was reportedly quite different; the Board arose out of a
socio-economic phenomenon whereby labour strife was increasingly anticipated and its causes
eradicated, making strikes less inevitable and creating new expectations as to how labour and
management should behave. The underlying “socio-economic phenomenon” has been
attributed to the “trite” cause of rapidly changing technology, social complexity and
interdependence, and the not-so-trite cause of the ensuing revolution of expectations.
772
In my
view, rapid change in these categories has created new expectations as to the way in which
family law “is done” and will ultimately limit social tolerance for solutions tied too closely to
the status quo. Systemic change often originates within existing systems, in the form of
recommendations of stakeholders who envision ways of improving efficiency and outcomes
within existing power structures. This approach is, in my view, useful only up to the point at
which, to borrow a phrase, it rests upon an “old morality.”
773
771
Law Reform Commission Report: Interim Report on Landlord and Tenant Law Applicable to Residential
Tenancies (1968) online: http://archive.org/stream/interimreportofo00onta#page/n73/mode/2up/search/court
772
Supra, footnote 36 at page 336. [Arthurs, Challenge and Response]
773
Ibid., at page 337. [Arthurs, Challenge and Response]
278
8.2 Therapeutic Justice
The concept of therapeutic jurisprudence, which began as a method of studying and evaluating
law and legal systems in terms of their therapeutic or non-therapeutic effects,
774
has evolved
beyond a method of study.
775
The term “therapeutic justice” has come to refer to practical
attempts to enhance the capacity of law and legal systems to function as a “healing agent,”
776
and
is controversial. It has been argued that therapeutic perspectives inappropriately muddle civil
justice systems with state health and welfare services, detract from the fundamental principle that
judicial institutions, rather than striving to “do good as well as to do right” must focus upon
“justice according to law” and must not “systematise the welfare function.”
777
It has been
maintained that therapeutic approaches fuel unrealistic notions that law can “make people good
and happy,” detract from understanding the “art of the possible;”
778
and inappropriately cast
individuals as objects of assistance, rather than subjects of rights. These sentiments resonate
with the traditional view that “judges should be judges,” that is, not stray from the classical
ideal.
779
774
David B. Wexler and Bruce Winick, Essays in Therapeutic Jurisprudence, (Carolina Academic Press,
1991).
775
David B. Wexler, “From Theory to Practice and Back Again in Therapeutic Jurisprudence: Now Comes the
Hard Part” (2011), 37 Monash U. L. Rev. 33. David Wexler recently commented that there has been
“tremendous development” in the past twenty years toward a “psychologically-sensitive approach to law in
general,” and that therapeutic approaches have moved from theory to practice and have been internationally
influential in legal practice and education.
776
Susan Goldberg, “Judging for the 21st Century: A Problem Solving Approach” (November 2004), National
Judicial Institute online: http://www.nji.ca/nji/Public/documents/Judgingfor21scenturyDe.pdf
777
Supra, footnote 246. [Doughty and Merch]
778
Mavis Maclean, Making Family Law, A Socio-Legal Account of Legislative Process in England and Wales
(Hart Publishing, 2011).
779
Supra, footnote 311 at page 261. [Nolan]
279
Barbara Babb has advocated for a therapeutic orientation in specialist family courts in the United
States, whereby “specially trained and interested judges address not only the legal issues, such as
divorce, custody, child support, and domestic violence, but also…consider the family’s nonlegal
needs, such as substance abuse, mental health issues, or domestic abuse.”
780
She describes the
Maryland family justice system as a suitable “national model” for a therapeutic family court: the
services available in this system reportedly include: “mediation, custody investigations,
emergency response personnel, mental health and substance abuse evaluations, information
services for the assistance of unrepresented litigants, lawyer referral services, and parenting
seminars,”
781
as well as a court-appointed “family support services coordinator” to compile
information about offsite community support services, coordinate these services with the family
court, and report on the need for additional services.
782
This paper does not suggest the Ontario family court system has failed to respond to changing
norms and expectations, indeed, a number of proposals and reforms aimed at increasing the
therapeutic effects of court processes have been discussed above. However, the question here
concerns the potential for a tribunal approach to bridge the “implementation gap” as it relates to
holistic family law dispute resolution. I suggest that the therapeutic potential of court systems is
limited, at least in part because in Anglo-American jurisdictions the adversarial courts system
has “been at the core of our legal institutions for centuries;” therefore, reforms to legal practice
and procedure do not tend to “go to the heart of the legal system.”
783
780
Supra, footnote 4 at pages 231-232. [Babb, Re-evaluating Where We Stand]
781
Barbara A. Babb “Maryland’s Family Divisions: Sensible Justice for Families and Children,” 2013) 72
M.d. L. Rev. 1124 at page 1127.
782
Ibid. [Babb, Maryland’s Family Divisions]
783
Nigel Stobbs, “In Defense of Therapeutic Jurisprudence: Threat, Promise and Worldview,”(2015) 8 Ariz.
Summit L. Rev. 325 at pages 325-326.
280
It must be noted that a “holistic” family justice system is not universally regarded among family
law scholars as a realistic goal; for example, Semple and Bala write that arguments in favour of
holistic systems imply a state responsibility that extends beyond protecting “adult rights” and
“children’s interests” to encompass protecting the “needs and interests of adults.”
784
The authors
maintain that ample demand is placed upon state resources just to attend to adult rights and
children’s needs and interests, without added responsibility for the “welfare of adults” and the
post-separation “family unit.”
785
They further note, “to the extent that the family justice system is
seen as a battle ground for angry and vindictive former spouses, there is little political support
for increased funding in this area.”
786
I do not challenge these assertions, but rather, suggest that
the limited capacity of family court systems to operate holistically supports the exploration of
alternative institutional models designed not to attract comparisons to a battle ground, which may
have the potential to save adjudication resources and apply them to family services that address
the interconnected welfare of all family members.
8.3 Efficiency
Adversarial systems have an insatiable appetite for resources.
787
There is, of course, an inevitable tension between always-constrained resources and proposals for
change. I have repeatedly referred to “efficiency” in this paper but, as noted, the real-world cost-
784
Supra, footnote 40 at pages 4-5. [Semple and Bala, Reforming the Family Justice System]
785
Ibid., at page 5.
786
Ibid., at page 6.
787
Supra, footnote 27. [Cromwell, Neither Out]
281
effectiveness of courts and various hybrid tribunal dispute resolution systems is beyond the
scope of this project.
For the purpose of this paper it is simply noted that tribunals seem generally to be considered
more cost efficient than courts, based upon their proliferation in response to efficiency concerns,
noted above.
788
This is unsurprising given reports that annual judicial salaries are upward of
$250,000, whereas mediator compensation is typically in the $53,000 to $80,000 range.
789
The
relative efficiency of tribunal processes might also be assumed because they can be designed to
facilitate self-representation;
790
indeed, the ability to self-represent is a recognized value in
administrative justice.
791
Moreover, access to justice concerns specific to family law (such as the
damaging potential of court processes and the potential for interim parenting arrangements to be
converted into status quo hurdles) may be ameliorated to the extent that a multi-disciplinary
tribunal would allow members with practical, clinical knowledge and experience to swiftly
gauge the interests of children from the outset, that is, to make relatively accurate early
deductions based upon expertise and available information.
Lastly, a family law tribunal may be more efficient than the court system simply because
efficiency is a dominant value in administrative law, as illustrated in the seemingly constant
growth and re-organization of tribunal systems in Ontario and other jurisdictions.
792
Moreover, it
788
See: supra, footnote 462. [Sossin and Baxter]
789
Supra, footnote 22 at page 428-429. [Semple and Rogerson]
790
University of Toronto Faculty of Law, “Middle Income Access to Civil Justice Initiative Background
Paper” online: http://www.law.utoronto.ca/documents/conferences2/AccessToJustice_LiteratureReview.pdf
791
Supra, footnote 462 at page 11. [Sossin and Baxter].
792
See: supra, footnote 462. [Sossin and Baxter]
282
seems a common-sense proposition that the cost of any justice system is increased when it
functions sub-optimally, as court systems surely do in the face of large numbers of self-
represented parties.
8.4 Authority: Contempt and Restraining Orders
There appear to be ways in which tribunals can be granted a full range of contempt powers,
although the extent to which there may be corresponding disadvantages, such as limiting the
force of any privative clause, or creating delay, are important concerns outside the scope of this
paper.
For the purpose of discussion here, it is noted that of the two branches of the common-law
contempt power, contempt in the face of the court and contempt outside the presence of the
court, and the two types of contempt power – civil contempt, which is the power to issue an
order for compliance, and criminal contempt, which is power to issue an order for punishment
such as fine or imprisonment – inferior courts and tribunals have jurisdiction only over contempt
in the face of the court (or tribunal) and have only civil contempt power.
793
Superior courts have
jurisdiction over both branches of contempt and have both civil and criminal contempt powers.
The contempt powers of an inferior court or tribunal can be expanded by legislation to include
jurisdiction over contempt outside the presence of the court and to include the criminal contempt
power; however, there is a common law presumption against expanding the jurisdiction of
793
Christopher A. Taylor, “Contempt of Court and Administrative Tribunals” (1993) 14 Advoc. Q. 418 at page
419.
283
inferior courts and tribunals, and therefore clear statutory language is needed.
794
It has been
suggested that this presumption is narrowly construed only in circumstances where the criminal
contempt power is granted, or where the grant of jurisdiction over contempt outside the tribunal
correspondingly deprives the Superior Courts of jurisdiction.
795
Two examples taken from a
discussion of the relevant case law illustrate these principles; in Chrysler v. Canada
(Competition Tribunal)
796
the Supreme Court of Canada considered the authority of the
Competition Tribunal to issue a contempt order for failure to comply with one of its orders. The
enabling legislation granted to the tribunal jurisdiction to “hear and determine all applications
made under Part VIII of the Competition Act and any matters related thereto,” as well as “all
such powers, rights and privileges as are vested in a superior court of record” with respect to “the
enforcement of its orders and other matters necessary or proper for the due exercise of its
jurisdiction.”
797
The court interpreted the express grant of “enforcement” power as conferring
jurisdiction over contempt outside the tribunal, in part on the basis of tribunal expertise and in
part because there was no privative clause by which the supervisory role of the Superior Courts
was entirely usurped.
798
With respect to the exercise by a tribunal of the criminal contempt
power, pursuant to United Nurses of Alberta v. Alberta (Attorney General)
799
if enabling
legislation provides that an order of a tribunal may be filed with the Superior Court and enforced
as such, the criminal contempt power is engaged such that disobedience of the order is likely to
constitute criminal contempt.
800
794
Ibid., at pages 419-420. [Taylor]
795
Ibid., at page 433. [Taylor]
796
Ibid., at page 430. [Taylor] Referring to Chrysler v. Canada (Competition Tribunal) 1992 1 S.C.R. 901
797
Ibid., at page 430. [Taylor] Referring to the analysis of Gonthier, J. in Chrysler v. Canada (Competition
Tribunal) 1992 1 S.C.R. 901
798
Ibid., at page 431. [Taylor]
799
Ibid. [Taylor] Referring to United Nurses of Alberta v. Alberta (Attorney General) (1992) 92 D.L.R. (4th)
609.
800
Ibid. [Taylor]
284
The capacity of a tribunal to exercise strong powers in domestic violence cases is acknowledged
as a further potential limiting force; it is merely noted here that, with the exception of the IDVC,
family cases in which there is a criminal component are currently divided in the court system and
would remain so if family law cases were decided in a tribunal system. For cases which do not
involve criminal charges, tribunal capacity to issue restraining orders does not seem problematic,
as such orders are currently issued by the inferior provincial courts. Finally, without diminishing
the need for strong authority in domestic violence cases, in high conflict cases that do not have a
criminal law component, a holistic tribunal could combine authority to issue restraining orders
with services aimed at achieving the goal recommended for high conflict family law cases in the
CCMP report, that is, a more integrated and collaborative approach to dispute resolution.
801
8.5 From Courts to Tribunal: Landlord and Tenant Board Policy Trail
The Landlord and Tenant Board was not created through a straightforward legislative exercise,
and the story of its emergence illustrates policy and constitutional issues relevant to the potential
to establish a family law tribunal. Almost all controversy surrounding the transfer from the
courts to a tribunal system for residential tenancy disputes was constitutional (that is, legalistic)
or related to the substantive changes to landlord and tenant law that accompanied the transition.
The process aspect of the change seems to have attracted much less debate.
The policy deliberations surrounding the adoption of a tribunal model for residential tenancy
disputes are located primarily in the Bill Davis era. The 1968 Law Reform Commission Report:
801
Supra, footnote 116 at page 12. [Birnbaum et al., Ottawa Coordinated Case Management]
285
Interim Report on Landlord and Tenant Law Applicable to Residential Tenancies asserts that the
court system was inundated with landlord and tenant matters. This is echoed in the 1978 Ministry
of Consumer and Commercial Relations Green Paper, Policy Options for Continuing Tenant
Protection. When the later Harris government enacted the Tenant Protection Act,
802
contemporaneous materials including the New Directions discussion paper, which was publicly
distributed, and Standing Committee transcripts reveal much debate over “common sense
revolution” issues such as rental housing market stimulation and rent control,
803
but little
controversy over the merits of a tribunal model for dispute resolution.
Once enacted, numerous complaints, both among landlord groups and tenant associations, were
voiced about the Tenant Protection Act, which was repealed and replaced by the Residential
Tenancies Act
804
in 2006. Dissatisfaction did not apparently concern tribunal structure or
functioning, but again centred on substantive law. Standing Committee hearing transcripts and
concurrent media reports reveal intense bargaining of interests among corporate landlords, small
landlord groups and tenant associations, primarily over “vacancy decontrol,” the ability of
landlords to raise rents for vacant units without regulation, and some criticism on each side that
the tribunal tended to favour the other, but no demands to abandon or substantially revise the
tribunal process.
802
Tenant Protection Act, 1997, S.O. 1997, c. 24.
803
The 1968 Law Reform Commission Report: Interim Report on Landlord and Tenant Law Applicable to
Residential Tenancies gives some indication of the policy rationale underlying the change to a tribunal system,
as does the 1978 Green Paper: Policy Options for Continuing Tenant Protection, issued by the Ministry of
Consumer and Commercial Relations.
804
Supra, footnote 381. [Residential Tenancies Act]
286
There are parallels between the problems identified in landlord and tenant law prior to the
transition from courts to the LTB, and the problems currently reported in family law, as
illustrated in the chart attached as Appendix A. To summarize: the transition began with policy
recommendations that landlord and tenant legal processes be made more accessible; as noted, it
was reported that courts were inundated with landlord and tenant matters, especially in large
population centres; an early initiative for dealing with the problem was adopted in the form of a
court-adjunct service to distribute information, oversee the preparation of applications, and
mediate disputes (comparable, perhaps, to Family Law Information Centres); and, in the
successful Nova Scotia constitutional case, the Attorney General of the province argued that
court procedures were too formal and fragmented, whereas the proposed administrative system
would not only ease the burden on courts, it would also provide a more appropriate setting for
dispute resolution.
8.6 Constitutional Arguments
Some of the constitutional issues raised with respect to the potential to create a provincial family
law tribunal were addressed in the course of the creation of the Ontario Landlord and Tenant
Board, and some are unique to the prospect of tribunal jurisdiction over family law.
(a) Constitution Act, 1867
The establishment of an administrative family law system is complicated by the combination of
federal and provincial authority over aspects of family dissolution, and by the status of section 96
courts. This section outlines potential arguments with respect to the constitutionality of a family
law tribunal with jurisdiction over all aspects of family law. As noted above, an expert analysis
287
as the constitutional implications of tribunal jurisdiction in some or all areas of family law is
recommended as a subject of further study.
Under section 91(26) of the British North America Act, 1867 (now cited as the Constitution Act,
1967,
805
but referred to here as the “BNA Act”) the federal government has exclusive authority to
legislate with respect to “marriage and divorce.” The provinces have exclusive legislative
authority under section 92(13) of the BNA Act with respect to “property and civil rights” in the
province, under section 92(16) with respect to “matters of a merely local or private nature,”
under section 92(14) in regard to “the administration of justice in the province” and under
section 92(12) regarding “solemnization of marriage”. The provincial authority over property
and civil rights has been interpreted to mean that the provinces govern the “day to day life of
citizens,”
806
which together with authority over matters of a “private nature” gives the provinces
complete legislative jurisdiction over family law (other than divorce), including with respect to
custody, support and division of matrimonial property.
Despite that federal constitutional authority over “marriage and divorce” is more technical than
substantive, the federal Divorce Act
807
contains provisions related to custody and support,
808
which will be expanded if the proposed new legislation is enacted.
809
Overlapping federal and
provincial legislation in these areas has caused considerable debate and litigation, which is not
discussed here; it is merely noted that sections of the Divorce Act which appear to tread upon
805
The Constitution Act, 1867 (UK), 30 & 31 Victoria, c 3.
806
S. Ian Bushnell, “Family Law and the Constitution” (1978) 1 Can. J. Fam. L. 202 at page 203.
807
Supra, footnote 14. [Divorce Act]
808
Sections 15-18, ibid. [Divorce Act]
809
Supra, footnote 722. [Bill C-78]
288
provincial jurisdiction over “property and civil rights,” that is, substantive family law, have been
upheld.
810
At confederation, the jurisdiction of the High Courts of England vested in the Superior Courts of
each province under section 129 of the BNA Act, as part of their “plenary jurisdiction,” that is,
jurisdiction over everything that is not validly assigned to different court.
811
The Superior
Court’s inherent plenary jurisdiction means that the court’s existence is rooted in constitutional
law, not merely legislation.
Section 96 of the BNA Act provides that judges of the Superior Courts, sometimes referred to as
“section 96 courts,”
812
must be appointed by the federal executive branch. Therefore, provincial
powers over the “organization of the provincial courts” and the “administration of justice” under
section 92(14) are qualified by section 96. Although not obvious on the face it, section 96 of the
BNA Act has been interpreted to “render unconstitutional any provincial legislation which vests
in provincial officers the jurisdiction exercised by, or analogous to that exercised by, those
judges at Confederation.”
813
Given the comprehensive provincial jurisdiction over substantive family law, a family law
tribunal would seemingly be a matter of provincial initiative. As the foregoing suggests, the BNA
Act presents obstacles to a provincially constituted family law tribunal with jurisdiction over all
810
Supra, footnote 806 at page 216. [Bushnell]
811
F.J.E. Jordan, “Federal Divorce Act (1968) and the Constitution” (1968) 14(2) McGill L.J. 209 at page 213.
811
Ibid., at pages 216. [Jordan]
812
Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) [2014] 3 SCR 31 at
paragraphs 29-30.
813
John Willis, “Section 96 of the British North America Act” (1940) 18 Can. Bar Rev. 517 at page 517.
289
aspects of family dissolution, including: 1) the prohibition against granting a power to adjudicate
that was exercised by section 96 courts in 1867 to a lower provincial court or other inferior entity
(that is, one with non-federally appointed judges or adjudicators); and 2) the principle that
legislative power cannot be delegated from one level of government to another, derived from the
division of powers in sections 91 and 92 of the BNA Act.
The first obstacle – how to allow provincially appointed judges to exercise powers previously
within the exclusive domain of federally appointed judges in section 96 courts – has been
overcome in UFCs by judicial appointments made by concurrent action of federal and provincial
governments.
814
With respect to the transfer of judicial authority to a non-judge within a non-
court entity, such as a tribunal, the “residential tendencies cases” apply,
815
as discussed in detail
below.
The second obstacle – the prohibition against delegating legislative functions to a different level
of government – can be overcome through a cooperative scheme of interlocking federal and
provincial legislation, using techniques such as “administrative delegation.”
816
For example, the
“Potato Marketing Board case”
817
concerned the validity of Prince Edward Island legislation
delegating to the provincial cabinet authority to market agricultural products and to create boards
814
Steven P Sibold, “The Unified Family Court and Section 96 of The British North America Act”
(1976) 3(2) Queen's Law Journal 71 at page 78.
815
Supra, footnote 656 at page 101. [Sossin, Designing Administrative Justice]
816
Bruce Ryder, “Equal Autonomy Canadian Federalism: The Continuing Search for Balance in the
Interpretation of the Division of Powers” (2011) The Supreme Court Law Review: Osgoode’s Annual
Constitutional Cases Conference 565 at page 597.
817
Prince Edward Island (Potato Marketing Board) v. H.B. Willis Inc., [1952] 2 S.C.R. 392. The other
foundational cases are Valin v. Langlois (1879), 3 S.C.R. 1 re: federal delegation; Hodge v. R. (1883-84), L.R.
9 App. Cas. 117 re: provincial delegation; and Constitutional Validity of Bill No. 136 (Nova Scotia), [1951]
S.C.R. 31 re: subordinate legislation.
290
to administer these marketing plans, and Parliamentary legislation which authorized the federal
cabinet to delegate federal power to regulate “inter-provincial and export trade” with respect to
the same agricultural products to the same provincial board. This “interlocking legislation” was
determined to be constitutionally legitimate, despite that Parliament could not have given power
to enact the same regulations to a provincial legislature, on the basis that a provincial board is an
autonomous creature from the legislature under which it is created. This “devious logic” is
referred to as “cooperative federalism.”
818
Through these mechanisms, a provincial family law tribunal could be established to administer
both federal and provincial laws.
819
As noted above, the authority of tribunal adjudicators to
assume the same jurisdiction as family law judges would remain to be determined under the
residential tenancies cases.
(b) Residential Tenancies Cases
The Ontario government under Premier Bill Davis enacted The Residential Tenancies Act,
1979,
820
(“RTA”) which contained a “legislative code” governing the rights and obligations of
landlords and tenants and established the Residential Tenancy Commission, mandated to take
over jurisdiction from the Superior Courts with respect to residential tenancy disputes. From the
outset there was some doubt as to the constitutional legitimacy of the new system, which was
entirely a project of the provincial government. The Provincial Cabinet therefore referred two
questions to the Ontario Court of Appeal: could a provincial tribunal exercise eviction powers,
818
Peter H. Russell, Rainer Knopff, F.L. Morton, Federalism and the Charter: Leading Constitutional
Decisions (Carleton University Press, 1989) at page 686.
819
The Prince Edward Island Potato Marketing Board v. H.B. Willis Incorporated (1952) 2 S.C.R. 392.
820
Residential Tenancies Act, 2006, S.O. 2006, c. 17.
291
and could it be empowered to compel tenants to comply with obligations imposed under the
Residential Tenancies Act? The Court of Appeal held that these powers were within the
exclusive jurisdiction of federal courts under section 96 at the time of confederation and could
not be transferred to a provincial tribunal, and in Reference re: Residential Tenancies Act
(Ontario)
821
the Supreme Court of Canada reached the same conclusion, through a three-part
analysis:
1. does the power conferred “broadly conform” to a power or jurisdiction exercised by a
superior, district or county court at confederation;
2. if so, is it a judicial power;
3. if yes, is the transferred power of decision subsidiary or necessarily ancillary to
predominately administrative function?
822
The analysis is based upon the principle noted above that neither Parliament nor the provincial
legislatures may impair the status or jurisdiction of Superior Courts; therefore, the Court held
that only judicial powers that are subsidiary or necessarily ancillary to a valid administrative
scheme may legitimately be transferred. At step one, the Court held that the powers conferred
upon the Residential Tenancy Commission broadly conformed to powers of s. 96 courts
exercised both before and after Confederation. At step two, the Court held that the power to
order eviction or compliance remained a judicial power exercised “in the context of a lis between
parties” requiring findings of fact, an analysis of law, and the application of law to the facts. At
the third step, the Court held that the central function of the Commission was dispute resolution
in a judicial form, and the judicial powers conferred were not part of a “broad legislative
scheme” in which judicial functions were “subsumed.”
823
821
See: Reference re: Residential Tenancies Act (Ontario), [1981] 1 SCR. 714 (SCC).
822
Ibid., at pages 729-734.
823
Ibid., at page 748.
292
Fifteen years later, in Reference re: Amendments to the Residential Tenancies Act (N.S.),
824
the
Supreme Court of Canada considered the constitutional validity of Nova Scotia’s planned
tribunal system for residential tenancy disputes. The Court distinguished its earlier decision In
the Ontario Reference on the basis that only a narrow issue had been presented to the court in
that case: the legitimacy of the proposed Commission’s specific adjudication powers over
eviction and enforcement of tenant obligations.
825
Justice McLachlin, for the majority in the Nova Scotia case, found residential landlord and tenant
disputes were resolved “co-extensively” by inferior and Superior Courts in 1867, and therefore
the creation of a provincial landlord and tenant tribunal did not violate section 96 of BNA Act.
826
The majority went on to consider the remaining parts of the analysis: whether, if the power had
been a judicial power exclusive to Superior Courts in 1876, it could be delegated to a provincial
tribunal as a “novel jurisdiction,” that is, as a judicial power subsumed within a new overall
institutional arrangement. In the opinion of the majority the “novel jurisdiction” test was not
met, essentially because the tribunal’s function and powers were purely analogous to those of the
courts. As McLachlin, J. put it, the new system amounted to “covering an existing body of law
with a new statutory wrapper.”
827
Most interesting here, the minority concurring decision of Lamer, C.J., Cory and Sopinka, J.J.,
found the tribunal would constitute a novel jurisdiction. First, the enabling legislation granted
powers to the Director of Residential Tenancies to investigate and mediate, as well as to make
824
Reference re: Residential Tenancies Act (Nova Scotia), [1996] 1 SCR 186 (SCC).
825
Ibid., at para. 73.
826
Ibid., at para. 69. [Reference (Nova Scotia)]
827
Ibid., at para. 101. [Reference (Nova Scotia)]
293
decisions and issue orders.
828
Second, the minority concluded that “residential tenancies” was a
“novel jurisdiction” in the sense of being a phenomenon of modern urban society. The minority
articulated a test for such determinations in future cases:
1. is the legislation an attempt to respond to a new societal interest and approach
regarding a subject matter of the legislation;
2. is the legislation based on principles of law that make it distinct from similar
legislation;
3. is there an identifiable social policy that is different from the policy goals of analogous
legislation?
829
(c) Jurisdiction in Family Law
At the time of confederation, divorce was religiously controversial and socially distasteful,
830
which resulted in there being no federal legislation in this area for more than one hundred years
after confederation. The initial role adopted by the federal government was to ensure that
marriage in one province was valid in another province and by asserting federal jurisdiction,
distancing the issue of divorce from local interests, and thereby ensuring that consensus around
divorce legislation was difficult to achieve.
831
In Newfoundland and Québec there was no federal
or provincial divorce legislation, but in most other provinces, including Ontario, the English
Matrimonial Causes Act of 1857 was incorporated by reference,
832
and established narrowly
specified grounds for divorce.
833
Provincial divorce acts remained in effect until 1968,
834
when
828
Ibid., at para. 5. [Reference (Nova Scotia)]
829
Ibid., at para. 37. [Reference (Nova Scotia)]
830
Supra, footnote 811 at page 213. [Jordan]
830
Ibid., at pages 211-213. [Jordan]
831
Ibid., at page 213. [Jordan]
832
Ibid., at page 211. [Jordan]
833
Kristin Douglas, “Divorce Law in Canada, Library of Parliament, Law and Government Division” (March
27, 2001) online: https://lop.parl.ca/content/lop/ResearchPublications/963-e.htm#ahistory
Supra, footnote 538. [Douglas]
834
Ibid. [Douglas]
294
the first federal legislation was passed
835
and Parliament granted to Superior Courts exclusive
authority to grant divorce decrees and make corollary relief orders in divorce applications, now
reflected in section 2(1) of the Divorce Act.
836
It was not until 1930 that the Supreme Court of Ontario (now the Superior Court) began to issue
divorce decrees; until then, a marriage could only be dissolved by private act of Parliament,
837
that is, a political, rather than judicial process. Therefore, Superior Court jurisdiction over
divorce was not exercised by Superior Courts in 1876. Under the first branch of the test in
Reference re: Residential Tenancies Act (Ontario)
838
it can be argued that the power to grant a
divorce decree does not conform to “a power or jurisdiction exercised by a superior, district or
county court at confederation.”
The Superior Courts did exercise jurisdiction over property disputes in 1867, through their
plenary jurisdiction; therefore, on the face of it only Superior Courts may make property orders
in family law disputes, as reflected in section 4(1) of the Family Law Act.
839
It should be noted,
however, that the Supreme Court of Canada has held that the question of whether a power or
835
Ibid. [Douglas]
836
Supra, footnote 14. [Divorce Act] In the result, parties seeking a divorce may apply to the Superior Court
under the Divorce Act for divorce and custody, access, child support and spousal support (as corollary relief,
despite provincial jurisdiction over family law, noted above), and may advance a claim in the same application
for property division under the Ontario Family Law Act. Parties not seeking divorce, may apply to either the
Superior Court or the inferior provincial courts for child support and spousal support under the Ontario Family
Law and for custody and access under the Children’s Law Reform Act,
836
but property claims (which outside of
marriage are governed by common law) may only be advanced in the Superior Court. With the exception of
UFCs, which exercise jurisdiction over all aspects of family law jurisdiction, family law will remain divided
between Superior Courts and Provincial Courts until the new plan to expand the Unified Court system is fully
implemented.
837
Archives of Ontario 210 Research Guide (updates 2018) online: www.archives.gov.on.ca/en/accesArchives
of Ontario Research Guide s/documents/research_guide_210_divorce_files_in_ontario.pdf
838
Reference re: Residential Tenancies Act (Ontario), [1981] 1 SCR. 714 (SCC).
839
Supra, footnote 720. [Ontario Family Law Act]
295
jurisdiction was exercised by a section 96 court at the time of confederation depends upon the
type of dispute, not the remedy sought, and should be narrowly construed.
840
With this in mind,
it can be argued that property claims between spouses were not a type of dispute resolved by
Superior Courts at confederation because women had no virtually no property rights at that time,
and certainly none that are analogous to current family law property rights. It can be argued that
a completely different societal interest is at stake in matrimonial property disputes, and that
while the remedy sought is a judicial decision over property rights, the type of dispute is the
settlement of all rights and obligations that flow from family dissolution (of which property is
only one component) and is quite different from anything that was before section 96 courts at
confederation.
841
Similar arguments have prevailed; for example, in jurisprudence regarding the
validity of tribunal jurisdiction with respect to worker’s compensation, it was decided that the
new board, “although dealing with the subject matter previously entrusted to the Superior
Court,” was dealing with it from a wholly different point of view.
842
It could be further argued that decision-making authority over property and all other aspects of
family law in the context of a holistic and therapeutic approach to family law dispute resolution
is part of a novel jurisdiction, based upon the minority opinion and analysis set out in Reference
re: Amendments to the Residential Tenancies Act (N.S.).
843
The argument is not difficult to
conceive: the delegated decision-making powers would be subsidiary and ancillary to the central
840
Supra, footnote 656, at page 101. [Sossin, Designing Administrative Justice] The author refers to Sobey’s
Stores Ltd. v. Yeoman’s [1989] 1 SCR 238. See also supra, footnote 813 at page 525. [Willis] The author
writes: “It is intra vires a provincial legislature to remove from one of the courts within sec. 96 a subject matter
which was being dealt with by it at Confederation and transfer it to a provincial tribunal, so long as it does not
empower that tribunal to decide with respect to it the same type of question that that court was deciding.”
841
Constance B. Backhouse, “Married Women’s Property Law in Nineteenth Century Canada” (1988) 6 Law
& Hist. Rev. 201. See also: supra, footnote 813. [Willis]
842
Supra, footnote 813 at page 540. [Willis]
843
Supra, footnote 37. [Carmichael]
296
tribunal function of facilitating settlement through a holistic and therapeutic settlement system, a
policy agenda distinct from any existing Ontario legislation; the enabling legislation would be a
clear response to a newly recognized social problem and societal interest, revealed by new social
norms as to family dissolution, in particular, the unacceptable process effects of family dispute
resolution through adversarial processes.
844
There could be no worker’s compensation tribunal system if it were impossible for a tribunal to
assume jurisdiction previously exercised by Superior Courts.
845
In A.G. Quebec v. Slanec &
Grimstead et al.
846
the Quebec Court of Kings Bench, Appeal Side, remarked with respect to the
novel jurisdiction of the commission:
The commission has without doubt, in a certain measure, to settle legal disputes; but it
has nothing of the nature of the ordinary tribunals, above all of Superior, District, or
County courts. Thus, it is not necessarily composed of lawyers; it is not bound by any
rules of procedure; it sits wherever it pleases; it cannot award costs, which practically
deprives the interested parties of legal or attorney assistance; it revises its own decisions
at will, and, sometimes even, without being requested to do so…
847
As noted, the creation of the LTB coincided with substantive changes in landlord and tenant law;
as the discussion above suggests, substantive law changes are essential to a novel jurisdiction
argument. The substantive law changes that might accompany a tribunal transition are outside
the scope of this paper.
844
Carol Rogerson, “From Murdoch to Leatherdale: The Uneven Course of Bora Laskin’s Family Law
Decisions” (1985) 35 U. Toronto L.J. 481 at page 536. The author’s remarks suggest that a tribunal approach
may signal a “serious new social problem requiring innovative solutions.”
845
Supra, footnote 813 at page 521. [Willis]
846
A.G. Quebec v. Slanec & Grimstead et al., [1933] 2 D.L.R. 289.
847
Ibid., at page 296.
297
8.7 Summary
I argue in this chapter that while there are obstacles to the transition from courts to tribunal for
family law, they are largely symbolic and ideological, and moreover, to the extent that they rest
upon ideology, they are rapidly becoming eclipsed by changes in technology, social norms,
perceptions of human interdependence in the context of separating families, the relative power of
social institutions and the populations they serve (and the related unmasking of illusions about
autonomy and “choice”), and the evolution in law, however halting, from formal to substantive
equality. Finally, it seems highly fortuitous that the “novel jurisdiction” argument which supports
a transition from courts to tribunal for family law is entirely consistent with a modern family law
policy agenda.
298
CONCLUSION
I have argued that a paradigm shift away from adversarialism and toward a more collaborative,
interdisciplinary and problem-solving approach to dispute resolution may enable
experimentation with alternative institutional approaches to family law dispute resolution,
specifically in the form of a holistic tribunal-based settlement system, at least in cases involving
children’s interests. The rationale for such a transition has been discussed largely in terms of
longstanding (but intensifying) recognition that family litigation is damaging to children and
separated families, which I argue has become so incompatible with modern social norms as to
constitute a new and serious social problem which requires an innovative solution. I have
suggested that a holistic tribunal “settlement system” in which multi-disciplinary mediators and
adjudicators function as equals, tribunal expertise is nurtured, transparent decision-making
guidelines are developed (and adjudication is a secondary, accessible, and inquisitorial
component) could address the needs of the “vulnerable subject” in multiple ways, and in general
improve the negotiation and settlement environment, whether or not the system is directly
engaged.
This thesis reports upon new empirical research regarding day-to-day mediation and adjudication
in selected tribunals. While this research may not be generalized to any tribunal as a whole, my
claim is that the reported experiences of tribunal members with tribunal processes and self-
represented litigants is relevant to the potential for an alternative institutional approach to family
law dispute resolution. The need for further research is noted throughout this paper; my
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conclusion, within the limited remit of this project, is that there is positive potential for a tribunal
approach to family law dispute resolution, and further study is warranted.
