06/29/2011 09:02 EDT | Updated 08/29/2011 05:12 EDT

Who Will Fix Canada's Family Law System?

Our legal system does neither parent any favours. With lawyer's fees in the tens of thousands of dollars, many Canadians wander alone into family court like sheep to the slaughter. My solution? Take family law out of court.

Canada's system of family law is decimating us, one family at a time.

With nearly 40 per cent of Canadian marriages ending in divorce, our next government needs to stop the bleeding, financial and emotional.

Our adversarial court system pits husband against wife in a dangerous game that all too often spirals out of control, taking whole families down and destroying children's lives in the process.

Custody cases are among the worst. Separating parents, usually fathers, are caught in a black vortex, fighting for the ability to remain an active part of their children's lives, sparring with mothers who too frequently use their hurt and anger to alienate their partners from their children.

To date, our governments have refused to make the changes that many jurisdictions in North America have already adopted: a move to a presumption of joint custody, in which parents continue to participate in their children's lives on a level playing field. With a rebuttable presumption of joint custody as the law of the land, a significant group of potential family law litigants could bypass the court system.

Regrettably, our system does neither parent any favours. With lawyer's fees in the tens of thousands of dollars, many Canadians wander alone into family court like sheep to the slaughter.

Legal aid for family law in Canada is almost non-existent, while refugees and criminal thugs, even terrorists, feast from the public purse.

What Canadians face is a shortage of judges and court staff, who gamely try to administer an underfunded bureaucracy that cannot meet their needs, and a process where the battle lines are drawn before they get there -- the beginning of their long wait for justice.

Legislators, law reformers, judges and lawyers have long recognized that court is no place to resolve family law disputes. Ontario's Law Commission released a report last September entitled "Voices From a Broken Family Law Justice System" decrying longer trials and increasing court and legal fees that are crippling a system that cannot deal with the intense emotional fallout of personal disputes.

In a recent family law case, Bruni v. Bruni 2010 ONSC 6568, Mr. Justice Joseph Quinn of Ontario began his reasons for judgment with a feigned cry for help -- "Paging Dr. Freud, Paging Dr. Freud" -- a provocative introduction to a bizarre family law case that was ill-suited for court intervention. Justice Quinn referred to the "roulette of family law."

The case took seven days of court time over a period of several months; not unusual since judges are routinely overbooked. Much of the evidence had nothing to do with the two legal issues: a claim to set aside a separation agreement and an allegation that Ms. Bruni had alienated the children from their father. The level of vitriol stunned Justice Quinn, who refused to set aside the agreement and admonished the parties for their childish behaviour. Justice Quinn took the brave step of denying Ms. Bruni spousal support as a rebuke for the wedge she had driven between the children and their father.

My solution? Take family law out of court and move it to Family Centres with a one-stop shopping approach. Provide education, counsellors, child-development professionals, mediators, arbitrators, divorce coaches, parenting coordinators and financial experts. These services should not be free, but should be paid for by those who access the programs on a sliding scale commensurate with their family income. For the poor and working poor, legal aid should be provided.

For those cases that will never settle without judicial intervention, appoint highly experienced judges who want to be there, as opposed to judges who find family law work a grind they would rather avoid.

Canadians deserve better. As it is, they leave court emotionally battered and bruised, and eventually broke.