In April 2013, the Canadian Bar Association (CBA) held a conference in Saskatoon to discuss “Access to Justice” and subsequently issued four reports: a summary, a metrics paper, a “community voice” paper, and a longer report.
I asked for and received these reports by email, as they were supposed to be on the website of the CBA, but they have been claiming problems with their site. Thus, I put the reports on the CEPC site here:
There are points made in these reports that parents and family law reform advocates can approve of: a general recognition of major problems in family law system, a need for substantive reforms, and some useful documentation of the legal professions previous attempts at reforms (and acceptance of their failures).
There is some superficial politically correct weirdness, such as defining “law” as a life skill –many would suggest that adversarial, greedy, winner take all legal training is exactly the opposite skill to the collaborative, conflict resolution, sharing thinking needed to successfully manage a family. Beyond that level lie the real problems: money, who the CBA defines as “stakeholders” and ignoring the role of the legal profession in family law failure, inaccessibility, bias, the richly deserved hostility and contempt that the public has for family law and the profession, etc.
The “Community Voice” paper is a report on CBA consultations. But the CBA only consulted with single mothers regarding family law (and the disabled, etc regarding other civil legal matters.) CBA is evidently stuck in the mental prison of gender apartheid, at least regarding family law. To the CBA, law seems to be a weapon to be used for advancing those they like, women and mothers, or if they can’t do that, exploiting, marginalizing and scapegoating those they don’t like: men and fathers. Family law does not work for women either, but this seems a convenient story for the CBA and their 37,000 lawyers to cover the billions of dollars in income that they get from families. Arguing about who fares the worst from a failing system is disingenuous; unless the incentives are changed, negative outcomes remain the same.
Supreme Court Justice Thomas Cromwell was the key speaker at the conference, and spoke about his report on family law, created with the unfortunately named “National Action Committee”. This was the short name for NACSOW, which for decades was the major government funded ideological campaign against men, fathers, boys and equal parenting, and which violently tried to storm Parliament. Someone should have pointed out this apparent breach of perceived impartiality.
CBA is right that there is insufficient information about the outcomes and experiences of people who must go through the justice system, particularly civil law. But the controls and decisions on data gathering are dominated by legal professionals, employees of the courts and departments of justice. Judges are free to rewrite court transcripts, make judgments of effective sole custody but call them “joint custody” and other manipulations by legal professionals suggest that as long as control rests with those who earn their livings from the current system, little or no objective measurement or data gathering is likely. With no really useful “hard data” as the report describes it, serious change is unlikely. Innovation will not happen in vested interests in the status quo dominate.
Of course, the CBA calls for more legal aid funding. Legal aid funding for family court is declining, except for special government funding for women only which promotes sole custody, and thus conflict. There is no recognition by the CBA report that funding both sides equally in family, even of the perhaps 5% of those who do go to trial is far beyond anything envisioned by any government. Providing legal aid to all family law cases and access to courts might involve more finances than all levels of government currently spend on all social programs.
The CBA is right that justice is inaccessible and unequal. I assume that is what is meant by “equal justice initiative”, although they don’t quite define it. The CBA wants a further 17 years (until 2030) to make changes, although their changes are unrealistic, impractical and self-serving. Since the Law Union study of family law in 1975 the problems have been identified by the legal profession repeatedly, wise and emphatic words repeated, but the experience by parents and children remains the same. The legal profession has failed repeatedly, and repeatedly admitted failure. With a few exceptions, they have opposed working alternatives from other jurisdictions and refused to collaborate with reform-seeking organizations, allying with gender extremist and opportunistic ideologues with similar vested interests. Thus the challenge for reformers becomes how to save the legal profession from itself, at least regarding family law. To the extent that the family courts and legal profession create and exploit problems, incentivize and take advantage of conflict and monopolize and block reform processes, then they are the problem. This CBA report does not face a question posed by equal parenting reformers, “If there is no basic legal question in most divorces, at least as far as children are concerned then why should the legal profession be allowed any input, control or authority?”
The entire equal access to justice problem needs to be broken down into specific, practical initiatives based on best practices which work in other jurisdictions. In family law, the CBA and government departments of justice need to collaborate with parents to provide incentives to move from adversarial court systems to conflict resolution, non adversarial alternatives. The system needs to work for families with conflicts, not just rent-seeking legal professionals. Outcomes should be measured for parents and children, not just governments and the courts.
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