Many of us have a notion of the workings of the Court process, a notion that is generated by various television and movie representations of this noble forum.
Our vision likely includes an elderly and prudent Justice, positioned on an elegant, raised dais, perhaps sporting a powdered wig. There is, inherent in this notion, the view that justice resides within the walls of the Courtroom, that each party will have his or her day in Court and that there will be reason and dignity to the process.
Fast forward from this revelry to the Ontario Family Court of the 21st century. Some months ago, I attend in “the Superior Court of Justice” to advance the worthy claims of my client. The Court list was some 90 cases long. There was not the faintest hope that the presiding Justice would be able to get through even 1/3 of this list. The waiting area outside of the Courtroom overflowed with anxious litigants. Many sat waiting with lawyers at their sides, generating hour upon hour of legal fees toward a case that would almost certainly not be heard on its assigned date.
Needless to say, as the day wore on tension and tempers mounted. Out of an abundance of caution, the regular police contingent was increased from one to two. Eventually, as was to be expected, an overwrought litigant flew into a tantrum. Foul language was uttered, wild limbs flailed and a garbage can was lifted and hurled on the floor of the Courthouse. The contents of that garbage can, as they lay littered and depressing on the Courthouse floor, appeared to mirror the state of the system.
It is not atypical to hear parties arguing in the Courthouse halls. This should not surprise the reader. But it is also not atypical to hear lawyers raising their voices at the Justices before whom they are appear; lawyers exchanging vicious and petty exchanges or personal attacks at the Courtroom door and Justices engaging in argument with counsel, bellowing at counsel and grunting their disapproval. This is the sad state of our Family Courts.
There are many reasons why the hallowed halls of justice have degenerated to a watered down replica of a WWF ring. A lot have to do with the cost and the complexity of the Family Court process. Countless amendments to the rules of practice have been issued by well intentioned draft persons. One goal has been to make the rules of the Court and Court filings more accessible to the lay person. Another has been to make the process less adversarial and more respectful of the need to preserve some degree of civility among members of a separated family. These are well founded and appropriate goals. The intended results have not materialized.
Each day a new layer of complexity or effort is added to the Court process. In and ½ years, we saw the introduction of the Affidavit re: Custody and Access, the Mandatory Information Session and the Dispute Resolution Conference. All served reasonable and useful purposes. All added to the multi-tiered nightmare that is a Family Court file. All, potentially, added to the cost to represented litigants.
The cost of the process has driven many individuals to seek to represent themselves. Aid to these individuals, including the Family Law Information Centre, Mandatory Information Sessions and “accessible” Court forms, have proved to be as effective as a band-aid on a flesh eating bacterial infection. An increasing number of confused and frustrated self-represented litigants have sought to walk through the process, frequently bogging it down, challenging and frustrating judges and significantly increasing the cost of their represented spouses.
Conferences, which were intended to be early steps in the Court process at which parties could negotiate healthier, wholistic solutions in a non-adversarial context, have, in fact, served this purpose. However, they have contributed to the declining formality of the Court process. Judges rarely gown for Conferences. The rules of conduct typically expected in a Court proceeding are loosened. The increased informality is intended to enhance the warm and fuzzy vibe that encourages settlement. It may serve this purpose but is has also had the insidious effect of reducing the participants’ adherence to notions of dignity, professionalism and respect for the forum.
Sadly, and increasingly, some Justices have been infected by the lack of decorum. It has, at times, become like a casual Friday at the office, to which everyone wears dirty jeans and crop tops. Judges will, at times, engage in argument with counsel, instead of offering prudent direction from a position of calm reserve. Some will roll their eyes, guffaw or grimace when they have lost the ability to offer constructive input. They will, at times, fail to lead by example, forgetting that they were appointed to the bench by those who believed that they would operate as the best version of themselves.
It is easy to offer criticism. It is more challenging to offer solutions but the first and most obvious solution is that each of us, each participant in the process, must step back and seek to regain our nobility of spirit and purpose. We must not stoop to a level of conduct that we would not respect in our children or partners or our friends. We must take time to reflect on our greater purpose and our role in healing and rebuilding families who have suffered great trauma and loss. We might view ourselves as healers, protectors, defenders or in other honourable terms, because it is our self-definition that directs our actions.