Accessing Justice in the Family Courts of New Brunswick
Guerette, Raymond, University of New Brunswick Law Journal
[Justice Guerette delivered these comments at an Access to Justice panel at the University of New Brunswick, on October 28th, 2011. The panel followed the thirty-third Viscount Bennett Lecture by The Honourable Justice Cromwell.]
Thank you Professor McCallum (Panel Chair).
My remarks this morning are intended to reflect the situation in our Family Courts, and the possibilities at our disposal to dramatically improve the process and improve access to those who must resort to
the Court to solve their marital issues.
Many experts in the family law community and leading jurists, such as Chief Justice McLaughlin of our Supreme Court, have expressed concern over the ability of ordinary citizens to access our Courts. More and more, we are seeing litigants representing themselves, and that in itself is causing considerable disruption and delay in the Court system.
Why are so many complaining about access to justice? They are complaining for many reasons, principally because hiring lawyers can be an open-ended situation where the cost is simply out of their reach. The fact is that litigation is very expensive.
People have an understandable fear that the legal system and their lawyers are going to vacuum their wallets, I hasten to add, however, that it is not the lawyers that are at fault. They are merely following the Rules of Court and going along with a process that is essentially adversarial. They are merely going with the flow and doing what is expected of them.
But it is not only costs. There are other reasons related to process. The system requires forms--Notices of Applications, Divorces, Affidavits, Motions, Financial Statements (9 pages), etc.,--all of which are legitimately required, at least to some degree, but which serve to thicken the threshold requirements for entering the judicial system.
It is just too complicated for many people, and as many of you know, there is a substantial number of people who have difficulty reading and understanding the forms.
This aspect alone is intimidating for most people, and has caused innumerable delays because they are unaware of the requirements demanded by the process. For most cases, a simple entry form would suffice.
Another reason is the reluctance to enter into another fractious and emotionally searing debate, where old wounds are reopened and children are again caught up in the crossfire. So, they put off resolution. When it finally comes to Court, the issues may be so big and emotionally charged that the case becomes almost unmanageable.
And lastly, I would add that our one-size-fits-all model does not allow for the expeditious resolution of relatively small issues, such as visitation difficulties, variation of child support orders where there is loss of employment, or where procedural difficulties are hampering the orderly preparations for trial.
These relatively small issues are mixed in with the larger cases, which means they wait their turn to be heard. Time can be a deterrent.
Ask any family law practitioner what question always comes up in the first interview, and they will tell you it is: "How long is this going to take?"
In summary, the average litigant finds the process to be a nightmare. The complicated procedures, the adversarial approach and of course the costs, all add up to frustration and general dissatisfaction.
So what do we mean when we say "Access to Justice". In my view, it should mean "Access to Solutions".
Traditionally, it has meant solutions after a trial and a judgment (usually a long way down the line). But it doesn't have to be that way. We can deliver solutions in other ways and much faster.
But first, we need to accept that family law cases are not like other types of litigation. It is not over when it's over.
The emotional scars, the unhappiness and the obligation to relate to the other spouse after trial, in order to permit access to the children, all of this can carry on for many years. …