The Time Has Come: Family Law Arbitration in B.C. (Part 1)

Is there anybody who believes that our current system of family law is working? Just ask any family law lawyer. There are never any winners when husbands, wives, partners, or lovers take their grievances to a Court to be adjudicated. Never. Not even when a litigant wins and is awarded costs.

Canada’s judiciary, law reformers and legislators apparently agree. Madam Justice Mary-Anne Betton of Ontario’s Supreme Court remarked that the Canadian system of family law “at best does not work and at worst, is highly destructive to families.”

Recently, Mr. Justice Quinn in Bruni v. Bruni began his Reasons for Judgment with a feigned cry for help: “Paging Dr. Freud, paging Dr. Freud”, a provocative introduction to a bizarre family law case that was ill-suited for court intervention. Quinn J. in his ruling referred to “the roulette of family law”.

The Law Commission of Ontario released an interim report in September 2010 entitled “Voices From a Broken Family Justice System” where they reported that longer trials and rising court costs and legal fees were crippling a system which had no ability to deal with the intense emotion of family law cases.

British Columbia is no different. With government budget cutbacks, there are too few Supreme Court judges, too many court cases and a need for additional court staff. It all adds up to a most unsatisfactory model of family law justice. And I understand the Provincial Court family law system may be worse.

Mediation, both private and court-based, is presently thriving as an alternative to litigation. Others are using a collaborative law model where each party agrees to use their best efforts to settle, with the assistance of counsel and other experts, and agrees not to go to court. The penalty for court proceedings is the requirement that the parties engage new counsel who must start at the beginning.

What’s gone wrong? It’s very simple. The best case scenario in court is still accompanied by indecent delays, staggering legal and accounting fees, uneven judicial expertise, and an unwillingness on the part of some judges to preside over family law hearings, intense emotional distress, and a lack of privacy.

It can also be worse. A judge may refer to a litigant as a “gold digger”, a “liar”, a “thief”, or an “abuser”. All of these expressions can show up online in Reasons for Judgment, although perhaps couched in more polite language, but not always.

Friends, business associates and other colleagues are now privy to the details of your client’s financial circumstances, inability to control Junior, and even the details of the once secret sexual dysfunction. It’s not a pretty picture.

What has been ignored in British Columbia until recently is family law arbitration. However, B.C.’s new Family Law Act, expected to be in full force within twelve months, heralds a new day for family law litigants.

Why is arbitration better than litigation? Part 2 of this post will tell you why.

Lawdiva aka Georgialee Lang