27 February 2014

The Case for Family Justice Reform and Access to Justice: C.A.J. v N.J.

A few days ago, Mr. Justice Bernard of the Supreme Court of British Columbia released his 174-paragraph judgment in C.A.J. v N.J. This case is, in terms of the law, unremarkable. However, in terms of the call for the radical reform of family justice systems most recently enunciated by the final report of the national Action Committee on Access to Justice, A Roadmap for Change (PDF), and by the final report of the Canadian Bar Association's access to justice committee, Equal Justice: Balancing the Scales (PDF), it is a clarion call for change.

The tale of C.A.J. is a tragicomedy involving two adults who married in 2000 and separated in 2009. The wife brought two children into the marriage, and the parties had another of their own. Neither party brought much by way of property into the relationship, and at the end of the day the only significant asset worth dividing was the family home, which had equity of about $160,000 at trial. Both parties worked during the marriage, the wife returning to the work force following the birth of their daughter, and both were working at the time of trial.

The litigation, which appears to have been started by the wife in 2010, led to a trial at which the parties represented themselves. The trial spanned a scant twelve days — almost short by today's extraordinary and egregious standards — but took more than two years to complete. Justice Bernard observed that the two years taken to complete the trial was "principally due to inaccurate time estimates, voluminous evidence, rescheduling difficulties, and the parties' unfamiliarity with the trial process and the rules of evidence."

C.A.J. bears many of the hallmarks of high-conflict family law cases:
  • each party alleged the other was an unfit primary caregiver
  • the wife accused the husband of family violence, harassment, stalking and threatening, and had made seventeen complaints to the police to that effect in the years following separation
  • the wife accused the husband of having a sexual interest in their eight year old daughter, which she also brought to the attention of the police
  • the husband accused the wife of alienating the children from him and the two step-children from their father
  • the husband accused the wife of being an anger addict with borderline personality disorder who was prepared to lie to get whatever she wanted
  • the wife's claims were on the extreme end of the scale — she sought sole custody of the daughter, retroactive and prospective child support, retroactive and prospective spousal support, a dramatic reapportioning of the family assets (70/30) and a restraining order against the husband
  • the husband's claims were less extreme — he also sought sole custody of the daughter and the removal of the wife as a guardian of the child  — but was prepared to a modest reapportionment (55/45) in favour of the wife
  • both parties were self-represented throughout a long trial
  • the trial which required the evidence of at least twelve witnesses, including neighbours, parents, friends and tenants, and the wife decided to call the two children she brought into the marriage to give evidence
It is easy to imagine how the inflammatory allegations made by each party, the wife in particular, would have entrenched each party in their positions, made compromise impossible and made trial inevitable.

C.A.J. also bears the hallmarks common to litigation conducted by parties without counsel, many of which were remarked upon by Madam Justice Gray in her 2013 study, Filling in the Blanks: Summary of a Study Regarding the Law of Evidence and Self-Represented Family and Civil Litigants in the BC Supreme Court. Justice Gray, in her survey of Supreme Court judges, reported that problems with evidence was the single most important factoring contributing to lengthened trials involving self-represented litigants. Other problems included:
  • poor organization
  • inclusion of irrelevant evidence
  • omission of evidence on an important issue
  • providing argument instead of evidence
  • including too much detail in relevant evidence
I expect that these figured prominently in Justice Bernard's concerns about the length of trial.

I in no way mean to cast aspersions on C.A.J. or N.J. for their conduct of the trial, the fact of their conflict and the vituperative nature of their allegations against each other, or for their unfamiliarity with the rules of evidence and court processes. Their trial, however, is starkly illustrative of a number of problematic features of the traditional justice system. 

Our court system, which perhaps reached the acme of its efficiency in the 1800s, is predicated on conflict and an me-versus-you mentality in which there are winners and losers. This works quite well for people suing about trespass to property, injuries sustained in a motor vehicle accident or a worker's unpaid bills, where the plaintiffs fight to prove fault and the severity of the injuries sustained and the defendants work to prove their blamelessness and the inconsequential nature of the plaintiffs' injuries, if any were sustained at all. 

It doesn't work quite so well in family matters, particularly given that fault has been expunged from our system since the 1985 Divorce Act

In family law, the goal is to address the future of the separated family, not the consequences of something that happened in the past. In family law, trial does not provide an end-point, only a framework that lasts until circumstances change and the order needs to be varied. In family law, there is no certainty as to result; every issue except for the divorce will be resolved considering the specific circumstances of the particular family before the court. In family law, there is no insurer or deep-pocketed corporation which pays the costs of lawyers' fees and court costs, the parties cover these expenses from the family property remaining to them. In family law, the result of trial is not predicated on findings of fault and the assignment of blame, but the financial realities of the parties and the best interests of their children. Perhaps most importantly, in family law, the relationships between those involved are emotional, not business-like, based on kinship ties and continue indefinitely after trial.

Litigation is not how disputes between family members should be resolved. There are no winners and losers in family law; there is a family unit which continues long after the parties' separation, albeit restructured to address the economic and housing consequences of family breakdown. An adversarial process based on examination and cross-examination is not how we should be dealing with these issues. Indeed, the notion of one spouse cross-examining the other on the stand at trial has always struck me as the very height of perversity.

Making things worse, our court system is based on the parties driving the process. It's up to the plaintiff to bring his or complaints before the court, and up to the defendant to defend against them. There is no gatekeeper who evaluates the merits and likelihood of success of a claim, and the traditional job of the judge is to passively receive the evidence the parties decide to present in the manner they decide to present it, without criticism, interference or limitation.

Three things result from this. Firstly, anyone can sue anyone for anything, regardless of how meretricious the complaint is. Yes, there is a mechanism for turfing ill-considered lawsuits, but first the defendant must spend the money to file a defence to avoid default and then foot the bill for an application to have the suit thrown out, and the time and cost spent in that exercise may be unrecoverable. Second, a party can present almost any evidence he or she wants at trial, without regard to its quality, relevance or prurience. Many judges attempt to control this at trial, but judges have little control over the venom a party chooses to express in an affidavit. Lastly, the court doesn't enforce or monitor the success of the orders it makes. It is up to the parties to an order to apply to enforce the order when it is breached, and incur all of those costs of the process, with no certainty that the order will be enforced or that the costs will be repaid by the other party.

Finally, the court system is based on often inscrutable rules and frequently counterintuitive evidentiary principles. The rules of the Supreme Court, which were re-written and simplified in 2010, require 162 pages to reproduce in Carswell's British Columbia Annual Practice, and contain about 100 rules in total, compared to a more modest 70 or so in the unsimplified version. The rule about evidence and procedure at trial in the new rules, Rule 14-7, is hardly a model of efficiency with a whopping 77 individual subrules. With the greatest of respect to the drafters of the new rules, they are not simpler and do not enhance the accessibility of the courts or the trial process.

The rules of evidence used at trial are complex and are often not at all what people would expect. For example, hearsay, repeating in your own evidence what someone else told you or said in a letter, is rarely permitted, requiring the original speaker or writer to be summoned to give evidence. The best evidence rule, which requires the original document, photograph, recording or object to be used as evidence, is frankly nonsensical in the age of email and Facebook. The rule in Browne v Dunn, which has to do with putting your version of events to the other side rather than saving it for your own evidence, is reasonably counterintuitive for someone new to trials, often requiring witnesses who have testified to be called back to court to give new evidence. I could go on. It is a measure of the complexity of the rules of evidence that the 2009 edition of Sopinka's The Law of Evidence in Canada, the primary text on evidence, retails for $390 and runs to more than 1,400 pages.

In any event, it is perhaps not surprising that Justice Gray anticipated that the law of evidence might thwart the administration of justice if the rules:
  • encouraged litigants to abandon a claim because of the burden of complying with the law of evidence
  • increased the time in court and the time passing between the end of trial and judgment
  • increased the time and expense parties are put to in responding to improper evidence
  • resulted in the making of incorrect judgments because of the inadequacy of the evidence provided
Surely to god we can do better than this.

It is a wonder that, if one thinks of the term "family justice system" as including collaborative dispute resolution processes, mediation, mediation-arbitration hybrid processes and parenting coordination, we as a society choose to direct almost all of our funding of the justice system toward the most expensive, most complex and most inaccessible part of the system. It must stand to reason — meaning that it can't only be me who thinks this — that if we decided to fund collaborative processes, meditation and the other non-adversarial processes, we might slash the number of family law matters proceeding to trial and instead see the majority of family law disputes being resolved in a more durable, less damaging way. It is the height of absurdity that we steer so much money into a system that provides the grotesque process endured by C.A.R. and N.J. rather than into cheaper, faster alternatives.

My thanks to the marvellous Morag McLeod for bringing this unfortunate case to my attention, and my apology for the polemic.