Published Tuesday June 9th, 2009
The disputes that arise at those times are complex, emotional and very personal; yet we as a society have historically used an adversarial, procedural and impersonal process to find solutions for these family disputes, a process which the participants do not understand and over which they have little or no control.
The rules of the process have been crudely adapted from rules of civil procedure which were created long before the modern family system and which were originally intended for commercial disputes, not disputes involving family members. The huge family justice system and its processes are applied to every situation no matter how big or small.
Our system is profoundly broken. We each have a story which illustrates the dilemma -- a parental alienation which was not given priority, adjournments, lack of mediation services, child protection matters take too long, no easy way to vary child support, wait times, large legal fees or inadequate legal aid services.
No one aspect of the system is to blame. The dysfunction and collateral damage suffered at the hands of this system is not solely due to lawyers or judges, or court staff or mediators. Each of these groups of professionals have attempted their own damage control but the reality is that only wholesale change -- a paradigm shift -- is going to alleviate the damage which the system does to families in crisis.
The problems in our family justice system were well known in February 2008 when our Minister of Justice, T. J. Burke, Q.C., struck the Access to Family Justice Task Force. Access to Family Justice is an unfortunate title because we all know that justice has precious little to do with how families reconfigure and heal following breakdowns.
Our group spent 10 months meeting, interviewing, studying, researching, reviewing, reading, collaborating, brainstorming, advocating and envisioning the best possible dispute resolution process for all families in our province -- be they big, small, rich, poor, urban, rural, sophisticated or not.
Sadly, in the course of our work, we have confirmed that the problems are as bad as we all feared. The stories were as compelling as we instinctively knew. The stakeholders and front line workers were as generous and as candid with their experience and advice as we could ever have imagined. We are indebted to every social worker, psychologist, court clerk, regional director, mediator, lawyer, judge, prosecutor, grandparent, and parent who gave us insight and advice.
The report has been tabled in the legislature (www.gnb.ca/justice). The Minister of Justice has set an incredibly ambitious agenda to revolutionize the way families in crisis in our province access solutions for their very particular situations. He and his staff cannot do this alone. We (the parents and grandparents, professionals and stakeholders) cannot stand back and passively or critically dare his success. We must all be active participants in delivering the family focused, empowering and efficient system our province deserves.
We are only 750,000 people, for goodness sake. There are only three degrees of separation between all of us. Surely we can have a system to support and educate our citizens and neighbours during the absolute worst time in their lives and surely we can do this in a way that restores hope and preserves dignity and protects children.
The cost of the existing system is too huge in time and money and children, whose innocence and relationships are irreparably damaged.
Undoubtedly there are situations that do absolutely require trials and individuals who are unable to participate in child focused and/or interest-based dispute resolution. For those individuals, our Family Courts must exist, but every other sacred cow must be challenged and must be available to be sacrificed and it has to happen immediately.
Modernizing, personalizing and revolutionizing our system of dispute resolution for families in crisis is not a spectator sport. Our province cannot ever be self-sufficient if our most vulnerable children and the most tragic family matters continue to be dealt with using the most adversarial, time consuming and expensive dispute resolution mechanism.
The system must change and our minister of justice is prepared to lead the change. He requires support from all MLAs, all judges, all lawyers, all families, all New Brunswickers. Each and every one of us has been and will be impacted directly or indirectly by the failure or success of our family court system.
n Mary-Eileen Flanagan is one of the seven members of the Access to Family Justice Task Force. She practices law in Saint John and is the current chair of the Family Law Section for the New Brunswick Branch of the Canadian Bar Association.