Found this interesting article while reading the paper today
Do-it-yourself-law — a trickle becomes a deluge: Goar | Toronto Star
Do-it-yourself-law — a trickle becomes a deluge: Goar | Toronto Star
Toronto Star article
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Tayken
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I hypothesize that this is because the actual "emotional cost" of litigation is much higher than the "dollar cost". The emotional impact of a family law litigation in my personal opinion is similar to that of witnessing a traumatic event at times. (Like a tsunami or earth quake.)
I am always puzzled how the words "family" and "law" were ever united as "Family Law"... Families just don't act that way (lawsuits) generally.
Good Luck!
Tayken
Tayken
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"How to improve an unjust court system: Goar"
By: Carol Goar Canada, Politics Government, Published on Fri May 17 2013
http://www.thestar.com/opinion/commentary/2013/05/17/how_to_improve_an_unjust_court_system_goar.html
"You can put lipstick on a pig..."
The challenge with this recommendation is that most, if not all the forms, are identified by they corresponding legislation in Ontario as an example. “Form 13” is a reflection of Rule 13 of the Family Law Rules etc…
“You cannot put lipstick on a pig and say it isn’t a pig anymore.”
So, updating the “forms” in my personal opinion is not enough to resolve the issue. The forms that people fill out are directly related to legislation which is the root of the problem. You need to resolve the legislative issues and complexity in the Family Law Rules, Family Law Act and Children’s Law Reform Act first. If you fix those the resulting “forms” that people fill out would be easier to understand and fill out.
To put it into a different perspective one has to ask did Microsoft resolve the user interface issues with their release of Windows 8 by introducing a new interface? I think the general consensus in the media is that it has not.
“Separation of church and state.”
I don’t think the issue is with paralegals per-say but, the governing body for lawyers and paralegals and the fact that they are a self-regulating body of professionals. Their mandates, investigations into conduct and other complaints are often self-serving and protective. Lawyers and paralegal complaints should be managed by the provincial Ombudsman or a similar organization. A model that may be more appropriate is the OIPRD. Not to say that the OIPRD is “great” but, at least it is a separate organization and the community is involved (and not just the police) in reviewing complaints.
This problem is also linked to the first bullet point from the article. If paralegals are limited to assisting in filling out forms then they just become professional makeup artists for pigs.
“Confessions to clergy are privileged under law.”
Just like you can’t force a priest to testify to a confession you can’t force a lawyer representing a party to confess that they attempted to “steer” their client to mediation but, their client wanted to litigate.
In the context of a custody and access dispute, a more collaborative model surrounding truly the best interests of the child is required. I would even suggest that the only parties to the case in an access dispute is the children and either parent’s interests play second to the children’s “best interests”. I am of the opinion that in a custody and access dispute client-solicitor privlidge should have to be waved on application to the court. The children’s best interests should forfit “legal strategy” / “truisms” and any parent conducting themselves in “good faith” should should not be communicating with their lawyer on anything that would constitute sharp practice nor should a lawyer be recommending this to a client. It is not in the best interests of children to execute on “truisms” before any court and is certainly NOT in the child/ren’s best interests.
Legal Aid: These organizations should be financially responsible for the conduct of their clients and solicitors under their employ. Legal Aid should be responsible for paying costs on a substantial basis to any successful party who is not represented by Legal Aid. Basically, the “wings” of Legal Aid need to be clipped.
Lawyers: Subsequently, for any lawyer caught conducting anything related to “sharp practice” should ultimately have the costs award directly ordered against them. If they are going to represent themselves as professionals and “Officers of the Court” then they should be accountable to the advice they give and the conduct their client exhibits. Subsequently I also think that lawyers should be given more opportunity to leave a file easier and to report their concerns and why they are leaving the file without repercussions from their clients. (Let lawyers quit from having to represent highly conflicted litigants seeking vengeance and to report their concerns to the court.)
"I am not a number!"
http://en.wikipedia.org/wiki/Number_Six_(The_Prisoner)
I don’t think this is a bad idea but, it may give people who are highly conflicted resources to continue to “fight it out in court”. I would recommend that there be an up-front analysis of conflict patterns and ongoing analysis of conflict patterns before the court. There also has to be earlier resolution to the conflict patterns. For example, go on an emergency ex-parte motion, get cross motioned days later and it is ordered 50-50 full joint custody… You pay all costs and have to secure your litigation for costs. (e.g. Shaw V. Shaw)
People shouldn't be held prisoner to the complexity of the Rules and Legislation by professionals and the amount of money the can spend... That isn't justice that is robbery.
"You can't have the cat watching the mouse."
How about more training of Justices too? Or specialized justices that only hear Family Law matters? How about the Canadian Judicial Council be headed by election and citizens? How about justices having to be elected officials and not appointed?
"If you build it they will come... and understand?"
We have this “orientation” it is called the MIP and it sucks. Flat out sucks.
How about enforcing a test after the “mandatory” information sessions? You fail the test, you can’t proceed in the matter until you pass.
Now, this wouldn’t work for those who have “urgent” matters so my recommendation is that when filed urgent that any urgent motion (in a custody and access dispute) require in the resulting order that both parents to be fully psychoanalyzed by a clinician and those reports to form part of the record and the party found to be at fault automatically has to pay the costs associated with the psychoanalysis.
"One ring to Rule them all."
The one justice Rule. In theory is good but, if you get a justice who exhibits “inappropriate behaviour” and “denigrates a litigant” how do you insure it doesn’t “ militates against a fair trial”?
Two justices are better on a single file. Two heads are always better than one. Not that they have to sit in the court room at the same time all the time. But, they can each hear different matters and exchange notes and work out a resolution for the family together on a joint order. Makes the appeal process even harder for the highly conflicted.
Also, for high conflict cases involving custody and access. Jurry trial?
"I went to Florida and all I got was this crappy t-shirt."
This reads like the "Travel Agency" of law advice... Why not make it for everyone to attend and be a part of? Why not make lawyers have to do a certain number of community service hours there assisting people? (Ya I know OrleansLawyer... this probably upset you. Sorry. But, you are doing this already by contributing to this forum so no worries about your future obligations.
)
In addition, Family Law Tribunals or implementation of collaborative law principles is needed. Justices can’t coach from the bench and I was surprised the article even stated this. They have to be impartial. If they want a coach then, supply unrepresented litigants with one… Paralegals would be great at this by the way.
All in all… It is probably best to read the report directly… This is just my initial opinion.
Good Luck!
Tayken
Note to the Author of the Article: Thank-you for writing this article. I recommend you review the content posted to this site. Tens of thousands of opinions and recommendations have been made by thousands of Canadian parents to this forum. Your article was good and my comments are not a reflection of your article but, the recommendations being made and additional information in support of them. (With a bit of a twist.)
By: Carol Goar Canada, Politics Government, Published on Fri May 17 2013
http://www.thestar.com/opinion/commentary/2013/05/17/how_to_improve_an_unjust_court_system_goar.html
Article said:
"You can put lipstick on a pig..."
The challenge with this recommendation is that most, if not all the forms, are identified by they corresponding legislation in Ontario as an example. “Form 13” is a reflection of Rule 13 of the Family Law Rules etc…
“You cannot put lipstick on a pig and say it isn’t a pig anymore.”
So, updating the “forms” in my personal opinion is not enough to resolve the issue. The forms that people fill out are directly related to legislation which is the root of the problem. You need to resolve the legislative issues and complexity in the Family Law Rules, Family Law Act and Children’s Law Reform Act first. If you fix those the resulting “forms” that people fill out would be easier to understand and fill out.
To put it into a different perspective one has to ask did Microsoft resolve the user interface issues with their release of Windows 8 by introducing a new interface? I think the general consensus in the media is that it has not.
“Separation of church and state.”
I don’t think the issue is with paralegals per-say but, the governing body for lawyers and paralegals and the fact that they are a self-regulating body of professionals. Their mandates, investigations into conduct and other complaints are often self-serving and protective. Lawyers and paralegal complaints should be managed by the provincial Ombudsman or a similar organization. A model that may be more appropriate is the OIPRD. Not to say that the OIPRD is “great” but, at least it is a separate organization and the community is involved (and not just the police) in reviewing complaints.
This problem is also linked to the first bullet point from the article. If paralegals are limited to assisting in filling out forms then they just become professional makeup artists for pigs.
Article said:
“Confessions to clergy are privileged under law.”
Just like you can’t force a priest to testify to a confession you can’t force a lawyer representing a party to confess that they attempted to “steer” their client to mediation but, their client wanted to litigate.
In the context of a custody and access dispute, a more collaborative model surrounding truly the best interests of the child is required. I would even suggest that the only parties to the case in an access dispute is the children and either parent’s interests play second to the children’s “best interests”. I am of the opinion that in a custody and access dispute client-solicitor privlidge should have to be waved on application to the court. The children’s best interests should forfit “legal strategy” / “truisms” and any parent conducting themselves in “good faith” should should not be communicating with their lawyer on anything that would constitute sharp practice nor should a lawyer be recommending this to a client. It is not in the best interests of children to execute on “truisms” before any court and is certainly NOT in the child/ren’s best interests.
Legal Aid: These organizations should be financially responsible for the conduct of their clients and solicitors under their employ. Legal Aid should be responsible for paying costs on a substantial basis to any successful party who is not represented by Legal Aid. Basically, the “wings” of Legal Aid need to be clipped.
Lawyers: Subsequently, for any lawyer caught conducting anything related to “sharp practice” should ultimately have the costs award directly ordered against them. If they are going to represent themselves as professionals and “Officers of the Court” then they should be accountable to the advice they give and the conduct their client exhibits. Subsequently I also think that lawyers should be given more opportunity to leave a file easier and to report their concerns and why they are leaving the file without repercussions from their clients. (Let lawyers quit from having to represent highly conflicted litigants seeking vengeance and to report their concerns to the court.)
Article said:
"I am not a number!"
http://en.wikipedia.org/wiki/Number_Six_(The_Prisoner)
I don’t think this is a bad idea but, it may give people who are highly conflicted resources to continue to “fight it out in court”. I would recommend that there be an up-front analysis of conflict patterns and ongoing analysis of conflict patterns before the court. There also has to be earlier resolution to the conflict patterns. For example, go on an emergency ex-parte motion, get cross motioned days later and it is ordered 50-50 full joint custody… You pay all costs and have to secure your litigation for costs. (e.g. Shaw V. Shaw)
People shouldn't be held prisoner to the complexity of the Rules and Legislation by professionals and the amount of money the can spend... That isn't justice that is robbery.
Article said:
"You can't have the cat watching the mouse."
How about more training of Justices too? Or specialized justices that only hear Family Law matters? How about the Canadian Judicial Council be headed by election and citizens? How about justices having to be elected officials and not appointed?
"If you build it they will come... and understand?"
We have this “orientation” it is called the MIP and it sucks. Flat out sucks.
How about enforcing a test after the “mandatory” information sessions? You fail the test, you can’t proceed in the matter until you pass.
Now, this wouldn’t work for those who have “urgent” matters so my recommendation is that when filed urgent that any urgent motion (in a custody and access dispute) require in the resulting order that both parents to be fully psychoanalyzed by a clinician and those reports to form part of the record and the party found to be at fault automatically has to pay the costs associated with the psychoanalysis.
Article said:
"One ring to Rule them all."
The one justice Rule. In theory is good but, if you get a justice who exhibits “inappropriate behaviour” and “denigrates a litigant” how do you insure it doesn’t “ militates against a fair trial”?
Two justices are better on a single file. Two heads are always better than one. Not that they have to sit in the court room at the same time all the time. But, they can each hear different matters and exchange notes and work out a resolution for the family together on a joint order. Makes the appeal process even harder for the highly conflicted.
Also, for high conflict cases involving custody and access. Jurry trial?
Article said:
"I went to Florida and all I got was this crappy t-shirt."
This reads like the "Travel Agency" of law advice... Why not make it for everyone to attend and be a part of? Why not make lawyers have to do a certain number of community service hours there assisting people? (Ya I know OrleansLawyer... this probably upset you. Sorry. But, you are doing this already by contributing to this forum so no worries about your future obligations.
)In addition, Family Law Tribunals or implementation of collaborative law principles is needed. Justices can’t coach from the bench and I was surprised the article even stated this. They have to be impartial. If they want a coach then, supply unrepresented litigants with one… Paralegals would be great at this by the way.
All in all… It is probably best to read the report directly… This is just my initial opinion.
Good Luck!
Tayken
Note to the Author of the Article: Thank-you for writing this article. I recommend you review the content posted to this site. Tens of thousands of opinions and recommendations have been made by thousands of Canadian parents to this forum. Your article was good and my comments are not a reflection of your article but, the recommendations being made and additional information in support of them. (With a bit of a twist.)
Last edited:
Tayken
Well-known member
Toronto Star published some comments/letters from this article series:
Triage needed for ‘family’ law | Toronto Star
Good Luck!
Tayken
Triage needed for ‘family’ law | Toronto Star
Good Luck!
Tayken
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