Thursday, March 28, 2013

Has the Supreme Court of Canada finally taken off it's rose coloured glasses?

Dear CyberSmokeBlog:

Interesting coincidence that this is being released at about the same time we are expecting the Macfarlane Report.

Chris Budgell

Dear Chris Budgell:

Thank you very much for this head's up. The first consideration that caught CyberSmokeblog's attention was how an advance copy of the official report seemed to "magically fall" into the lap of the Globe and Mail. Did it simply telephone the Supreme Court to make the request or was a more nefarious deed involved? If the the former then, hell .....
 "Hello, Beverley McLachlin? CyberSmokeBlog would like an advance copy of the Report. Thank you!"

Manitoba has it's own poster child case for what's wrong with Queen's Bench Family Division here it's called, Delichte versus Rogers (FD 04-01-73200).
Karyn Delichte
This file has just about everything and for added good measure it features "Jolly" Jack King of Petersen-King, yes, that Jack King of Douglas Inquiry fame speaking of which will it reconvene again this century?
As for the Macfarlane Study, if preliminary indications in the media are any indication expect the Canadian judiciary to get ripped for treating self-reps like ....! BTW, Ms Delichte has been a self-litigant for some time. CSB will have a lot more to say about Delichte versus Rogers very shortly.

Perhaps the last word should go to Ms Fossil at the height of her rose coloured wearing glasses days before the Douglas Inquiry, the Macfarlane Study and the soon to be "officially" released Study of Family Court.
"Let me begin by asserting that Canada has a strong and healthy justice system. Indeed, our courts and justice system are looked to by many countries as exemplary. We have well-appointed courtrooms, presided over by highly qualified judges. Our judges are independent and deliver impartial justice, free of fear and favour. The Canadian Judicial Council, which I head, recently issued an information note on the judicial appointments process in which it affirmed these long standing-principles on which our justice system is based. Canadians can have confidence that judges are committed to rendering judgment in accordance with the law and based on the evidence. Corruption and partisanship are non-issues. In all these things, we are fortunate indeed." ..... The Empire Club of Canada Toronto, March 8, 2007.
Clare L. Pieuk
Report to Supreme Court chief Justice calls for family law overhaul
Kirk Makin
Wednesday, March 27, 2013
Beverley McLachlin, Chief Justice of the Supreme Court of Canaa, delivers a speech in Ottawa February, 2013. An unreleased report commissioned by Judge McLachlin is urging a radical overhaul of Canada's family law system. (Fred Chartrand/The Canadian Press)

An unreleased report commissioned by the country’s top judge is urging a radical overhaul of Canada’s family law system.

The report to Chief Justice Beverley McLachlin, scheduled for release next month, calls for restructuring the family law system from the ground up, with a focus on streamlining the court process and ending a fixation on combat.

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The family law system has been under attack for much of the past two or three decades over litigation that drags out and the destructive effect of the adversarial process on couples who are vulnerable and prone to go on the attack. And the inordinate costs of litigation have led to a massive increase in the number of litigants who represent themselves – now as much as 70 or 80 per cent.

A copy of the report, obtained by The Globe and Mail, says that estranged spouses and their children are seriously damaged by the adversarial system; and that judges, lawyers and law schools must embrace a culture of mediation and settlement.

The ground-breaking report also recommends the imposition of painful cost awards against litigants who behave badly or impede settlements.

It says that law schools have to stop minimizing the importance of family law in their curricula and that legal aid for family law cases must be sharply increased.

“Cuts to family legal aid have a disproportionate effect on women and children, particularly those who are most vulnerable – e.g. aboriginal, immigrant and disabled women,” the report notes. “Even middle-income levels typically cannot support the cost of any significant amount of legal representation.”

The report also recommends the creation of unified family court branches across the country to provide one-stop shopping for litigants who must currently navigate between the provincial and federal court systems.

Chief Justice McLachlin struck the committee out of concern that justice is fast becoming inaccessible to a vast proportion of the country. She asked her Supreme Court colleague, Mr. Justice Thomas Cromwell, to head the group – known as the Action Committee on Access to Justice in Civil and Family Matters. Judge Cromwell is expected to unveil the report and its 31 recommendations next month.

Another of the report’s recommendations urges that estranged spouses be forced to attend one session with a qualified professional mediator before they are permitted to proceed toward a trial.

The working group states that the failure of the adversarial model to resolve family law disputes has taken an enormous toll on the finances and mental equilibrium of litigants.

“Adversarialism is a deep habit of our culture,” it says. “It is a default position, an attitude that people in Western cultures learn early and tend to employ quite automatically.”

Family law disputes affect more Canadians than any other single area of law, the report states, yet law schools treat it as an afterthought because they have become so geared to pleasing the demands of large law firms.

“There is a causal relationship between unresolved legal problems and increased health, social welfare and economic problems,” the report says. “We wonder at the ultimate impact this will have on public confidence in the justice system and on civil society.”

The Chief Justice’s committee applauds a number of efforts that have been made in various jurisdictions to speed up and mediate family law disputes, but says they have been piecemeal and not well co-ordinated.

It says the court system needs fewer generalist judges who merely “umpire” family disputes, and more specially designated judges with the expertise and commitment to prod litigants toward a negotiated settlement early in the process.

The committee says the press, with its innate love of stories involving conflict and emotion, also play a key role in maintaining a public perception that the family law system is a forum for “trial by combat.”

It says judges, practitioners and bar associations can help reverse this psychology by throwing themselves behind public education programs. Court personnel, it says, can also play a role by providing mandatory information sessions and user-friendly services in courthouses, allowing self-represented litigants to learn about the legal process and the mechanisms available to settle cases quickly, peacefully and at minimal cost.

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