Family law has hit a snag in regards to progression through the courtroom. The judicial system is not adequately equipped to meet the demand of justice for family law cases. In instances that are already physically and emotionally draining, like divorce or custody battles, stress is only being added to the mix as delays and a lack of judges raise the financial burden.
“What I think contributes to it mostly is ultimately the number of cases,” said Jagjit S. Bhathal, a family lawyer with Hummingbird Lawyers LLP who sees this congestion first-hand.
Bhathal noted that “In Newmarket, where I practice mostly, the bench there is excellent but there are a lot of cases in that court. Almost too many. However, there seems to be a larger availability of judges and dates in Toronto, which allows for matters to be scheduled much faster.”
The number of cases that are seen in the GTA, with respect to family law, has a direct correlation with the population increase that Ontario has seen, specifically in Brampton, Newmarket and other parts of the GTA.
“Ontario has the highest population-to-judge ratio in Canada. Ontario saw an increase in over 2.5 million between 1990 and 2007, and that number is still climbing. In the same period of time, from the merger of the courts, only 40 judges were added to deal with civil courts. Unfortunately, the steepest incline in population was seen in the GTA, and this is the area being hit hardest by delays,” Bhathal said.
Bhathal continued to explain that the increase in cases needs to be met with more courtrooms. “I have always said it, and I have heard it from many court staff; there just isn’t enough courtrooms.
“The common solution would be to double the number of judges to alleviate the delays. Yet, even if the number of judges was to drastically rise, there still aren’t enough courtrooms available to house these cases.”
The lack of courtrooms, and judges to see these cases result in a congested system that creates frustration for litigants in an already stressful time.
Bhathal said, “As a result of this congestion, cases are simply dragged on. When they get dragged on and they last longer than they should, we see an increase in individual’s costs, frustrations and general negativity towards the system.”
Bhathal was asked about whether or not an increase in divorce rates were a contributing factor to congestion, and confusion in the courts.
“I haven’t heard of much information in regards to an increase in divorce rates. It seems to stay around 50%. However, I have heard of a growing percentage of people not getting married, and it is with those individuals that matters are complicated when things fall through.
“It is more complicated for individuals who are not married when it comes to litigation. The property regime is not as precise and defined for those individuals as it is for individuals who have been married.”
In explaining the differing property regime Bhathal noted that “For those who are not married, you have to establish contributions to the other’s assets and whether or not they were in a joint venture. It is not as automatic as a simple calculation of assets an individual brought to the marriage, and then what they will leave with upon separation.”
The Toronto Star recently published an article showing how many in Canada are looking at marriage as an antiquated practice. With this outlook being brought to the public’s attention, Bhathal noted that “it is a much more nuanced legal test, and therefore spawns more litigation.”
While this congestion in the civil courts has been an ever growing issue, Bhathal has seen some areas make a tangible effort to help alleviate some of these delays and see more cases move through.
Bhathal said, “Each of the courts has their own practices that they try to institute directions to help. Central West has a brand new consolidated practice direction which is trying to encourage resolution and inquiring offers to be made more strict with respect to how long motions are scheduled and heard.”
Although he has seen these efforts, he mentions that he is yet to see a material impact in the reduction of delays.
Ultimately, Bhathal puts it on the individuals to help play a part in the reduction of delays and a more free-flowing judicial system. Misconceptions of the speed of the courts and the rewards gain are detrimental to the system as a whole.
He noted that “Most cases should try to avoid court if it can because people have a misconception as to how quickly court moves.”
He continued by explaining how, “It is easier said than followed, but if people could act reasonably with one another and have a willingness to make small financial sacrifices, these delays might be greatly reduced.
“Of course some cases can get through quickly if there is a willingness from both sides. Matters can be resolved in a few meetings because there is full transparency from both parties. Everyone presents financial disclosure, take reasonable positions and then people move on with their lives.”
Additional Reading:
Divorce Lawyer In Toronto, Ontario