Fixing What Wasn’t Broken
upon a time,
Things worked reasonably well under this system for many years—or so I thought. In my county, Hastings, litigants could get a motion heard in either court within a week. The limiting factor was their lawyers’ availability, not the courts’ availability.
the paperwork wasn’t the only
problem. The procedure itself began
bogging down. You couldn’t bring a
motion without having a case conference first.
Matters that could previously
have been adjudicated within a week or two were now languishing
unresolved for a
couple of months. Lawyers who had
previously been spending one morning a week in provincial court were
spending all day, sometimes until 6 or 7 p.m.
There were so many extra documents and court appearances
retainers were quickly exhausted and more litigants began appearing
unrepresented. Where one duty counsel
had previously sufficed in
government kept proposing to bring the
new rules to Superior Court, too, but encountered considerable
lawyers and judges in locations where the old rules were still
efficiently. Unfortunately, resistance
proved futile in halting the Borg-like march of the Family Rules
Collective. The proclamation has been
resistance is not simply a matter of
lazy lawyers refusing to learn something new.
We’ve already learned the new rules, because most family
appear at least occasionally in both courts and sometimes in “unified”
in nearby counties. On the contrary, the
resistance arises precisely because we now have intimate first-hand
of both systems, gained through almost five years’ experience. The reality is, we haven’t found the new
rules to be an improvement. Most of us
think they’re a deterioration. When our
imminent assimilation was discussed at a recent meeting of the
whether this could be merely a
local phenomenon, I canvassed some colleagues in
Everywhere I inquired, the preponderance of opinion seemed to be that the new rules were not a boon to either lawyers or litigants. So what was impelling the government to impose them upon the whole province? Why were they planning to substitute a worse system for a better one?
I decided to ask the Attorney-General’s office. Specifically, I asked whether some study had been done, or some statistics had been gathered, demonstrating that the new rules were better in some way—any way. Were more cases being resolved? Were cases settling faster? Was the process cheaper? Were litigants happier? Were children adjusting better? In short, what evidence existed that this system was an improvement?
The A-G’s office pow-wowed over my question for three days, then e-mailed a 715-word essay (for comparison, this column contains 856 words). The short answer was: no, there were no studies. But my correspondent then proceeded to elucidate the virtues of the rules. They were designed to ensure a fair process for all parties, save expense and time, allocate court resources appropriately, encourage early settlement, improve disclosure, prevent frivolous actions and so on.
Lovely. Who could possibly oppose such worthy goals? There’s just one problem. There’s no evidence the new rules are actually achieving these goals. The evidence largely seems to point in the opposite direction.
While the old rules were perhaps not perfect, it should have been incumbent upon those wishing to fix them to demonstrate, after having tried out their fix for five years, that it actually makes things better. If it doesn’t, the obvious course of action is to postpone implementing the fix until they can demonstrate that it’s an improvement over what already exists.
Meanwhile, many lawyers are turning to collaborative family law as a means of avoiding the courts altogether. That’s my strategy too. I just hope the government doesn’t interpret the reduced case load as a sign that it has done something right.
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