Monday, March 3, 2008

Family Law Reform for New Brunswick

I was at Tim Hortons today when I was approached by a constituent that didn't like the idea of Government suspending drivers licenses of parents who refused to pay child support. I offered to buy him a coffee and sit down with him to hear his story. Geesh! I am glad I had some time on my hands this morning.

Divorce. What more can you say about this topic that hasn't been said? Everyone has a story about a couple they knew who went through a bad divorce. Everyone has a friend, co-worker or acquaintance whose parents are divorced. It's generally ugly. It's always emotional, especially when children are involved and it costs a tonne of money. Legal fees, child therapists, spousal and child support payments, custody and access arrangements etc. It creates an emotional toll on the family, extended family members, friends and quite frankly just about anyone who listens.

While practising law before becoming Minister of Justice, I had dabbled enough in family law to build a descent reputation that others who were experiencing marital matters would seek my advice. The files were always difficult, never the same and emotionally challenging. One of my biggest concerns was the delays in our family law system. For example, if a mother of two school aged children came to see me after recently separating and seeking a temporary order for custody, access and child support it would routinely take 6 months or more to obtain an order from a Judge. Herein lies the problem. Our family courts are so backed up and under resourced that in some areas of the Province, Judges are performing what are called "Triage Days." In other words, they may hear up to 15 to 20 applications for custody, access and child support in one day. Whether you think this is a good or bad thing, it shouldn't necessarily be happening. Our system is designed to be adversarial and isn't focussed on mediation as much as it should be. The Supreme Court of Canada believes that parents should be responsible enough to formalize what they believe to be in the best interests of their chil(ren) and that Courts should be minimally intrusive unless cases of serious neglect or abuse exist. I tend to agree.

In other Provinces mandatory mediation and arbitration exist. It's an effective way to allow parents sort out their schedules, marital property and finances but only after the best interests of the chil(ren) has been resolved. In places such as Nova Scotia they have a case management system that allows a Court to fast track an application for custody, access and child support within 4-6 weeks so the child(ren) are not exposed to long delays and can begin receiving support as soon as possible.

Recently, I announced the establishment of a Family Law Task Force chaired by Justice Raymond Guerette. He is an established, distinguished gentleman that has been hearing family law cases for many, many years. Prior to his appointment, I only knew him by his reputation to get things done. However after speaking with him on these important issues, I am even more confident that he and his team of senior practising family law lawyers will deliver substanive recommendations that will allow us to overhaul our family court system.

I think everyone will tend to agree that no matter how bad a couple ends up disliking each other after divorcing that their children shouldn't suffer. I am a father of three and couldn't imagine not providing for them or giving the last cent in my pocket to ensure their needs came before mine.

Thanks for listening,



mikel said...

My question would be, what is the use of needing recommendations? This is why so many are constantly needling this government on creating 'task forces'. Didn't you just say that other provinces have mediation services? It doesn't take a genius to make this recommendation: offer mediation services.

If Nova Scotia's system does it better, then just pick up their legislation and introduce it. These things get worked over after the first reading anyway, so just set up the legislation for the mediation services-why wait?

Since the topic is divorce, we can add a seldomly mentioned piece of legislation added by the tories in the last legislature. Up until then, divorce was considered an 'equal partnership' and at the divorce it was dissolved equally. Lord dumped out the 'equal' part, sending couples into civil court to decide what each person brought into the marriage and so what they'd get out.

All that is required to change that is changing the legislation back to how it was previously.

Awareness said...

I don't think it's as easy as mikel seems to think it is.....though I do agree that this province can look beyond our borders at other systems to learn from them.

I'm glad to see changes are in the air with respect to family law reform, and hope that our children's needs and well being will be front and centre with respect to any changes in the process.

welcome to blogging TJ. Perhaps your initiative will spur on other elected officials to jump on board.

mikel said...
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mikel said...

It depends what is meant by 'easy'. Mr. Burke seems to have quite a bit of knowledge in this field already, and seems to know all about the systems of at least many of the provinces.

So it IS 'easy', take a look at the residential tenants act (which is still yet to be proclaimed)-that was introduced by Harold Doherty on his FIRST day after winning the by-election.

And essentially his legislation was exactly what Charles (and some others) were asking for and would have solved the problem-the fact that tenants don't have basic human rights.

Now, HERE is where it gets 'not easy'-because we know that Lord introduced the change during his speech from the throne so obviously can't simply let the liberal party take credit.

What then followed was eight months of deliberating-which is what legislators are elected to do. It's 'not easy' because of course people with money are involved and so the final legislation gave them rights-but they had to 'pay' for them.

So it WAS 'easy'. The government COULD have simply passed Doherty's legislation and caught up with all the other provinces-it didn't, it instead tabled a revised tenants act that was sixty pages of limiting the rights they were going to bestow, with a few bells and whistles.

People have some idea that legislation is some massively alchemic process which they don't understand and is beyond them-I'd encourage those people to go actually read some legislation because thats far from the case.

Doing the legislation IS 'easy', you simply find a place that is doing it better and adopt it, if it has problems as it goes along, you adapt it.

What is NOT easy is a politician actually standing up and saying 'this is MY idea and its a good one and I'll take blame or responsibility for its repurcussions'. THAT takes serious balls-but actually not that much in NB because the media almost never reports on new legislation anyway. And its hardly me making these criticisms, since the election the media and blogs have been full of commentors complaining about all the studies. Hell, what were the liberals doing while they were in opposition if not studying the problems?

Charles LeBlanc said...

Hey Mike? It's Ed Doherty!!!

Not Harold!!!

Hmmmmmmm..the iron horse a politician???

Now..that would be very interesting!!!!


mikel said...

SOrry about that Charles, there's as many Doherty's as there are Leblanc's! Also sorry for posting that twice, didn't mean to.

T.J. Burke said...

Thank you awareness for your welcoming comments. As most people realize, you just don't pick up legislation from one Province and introduce it in another. Most legislation, particularly our Family Law legislation ties into multiple pieces of other legislation. As well, some legislation cannot be amended by a Province it it infringes upon Federal jurisdiction, such as the Divorce Act. Of course, it wouldn't take a genius to figure that out either I suppose.

Spinks said...

Oh no not mikel from Waterloo, Ontario with a new pool to play in. Good luck T.J., as you know from my blog you're going to need it with Mr. Archibald. :)

The only serious point to add is awareness is right, marriage issues are never easy. Although any government policies which can be created which can encourage families to actually stay together and not go the route of divorce are welcome (although frankly I have no idea what those are, short of not taxing families to death). Any New Brunswick family will notice that when they do their taxes this year and see the Feds giving families a break tax-wise and the province of N.B. doing...well not so much. It's a pretty wide gap.

mikel said...

First, nobody said that crafting legislation meant to 'paste and copy' from one province to NB. What was said is that it is EASY to do that without needing a consultant-a second year law student can write legislation, hell, in the states the general public often does it. Thats what the legislature is for, present the motion, then the opposition does tons of work to trash it.

The crux of this issue is the two things that Mr. Burke mentions above-that he 'likes' mandatory mediation and that he 'likes' Nova Scotia's case management system.

Those are two separate policy initiatives- the latter is more of a bureaucratic decision (namely whether to give microsoft even more money), the first is a political decision.

What is NOT easy is the political aspect. Namely, whether the government SHOULD have mandatory mediation, which Mr. Burke already seems to think is effective. Thats' far from a universal truth, many call it the 'privatization of the courts' and many groups actively oppose it. There are also other options.

So here is an alternative instead of a consultant, in fact it would probably be cheaper, and at least it is more democratic.

Mr. Burke represents a riding. I don't know which it is, but he has a budget for sending information to his constituents.

1. Set up a website on 'mandatory mediation' and other options for dealing with the backlog-how much it costs for more judges, how much it costs for training of mediators etc.

2. Do up an information package on the various alternatives. Some may argue that a consultant is needed for this, but in fifteen minutes of website searching I've already learned a fair bit about it. This website and others could be used, Charles and Spinks would certainly stick their noses in. I've been on blogs where more legislation has been bandied about than is usually seen during question period.

3. Mail or deliver the package to the people in that one riding. Let them go to the website for more information, and link them to online conversations on the subject.

4. Get various groups to do up a video or presentation on the various choices, make it available on youtube.

Then let them vote.

We know what the political problem is...too much backlog. To deal with that there are several options.

Again, legislation is not some magical entity that you need years of theology to understand. Right across the border in Maine the people have the right to do this any time and all the time-and they do.

You want 'transformation', THAT idea is transformational. That's why nobody trusts government's use of such rhetoric-even when they mean it they don't mean it. This would be transformational at a grassroots level.

Not only does that work for mandatory mediation, but also for just about any legislation.

T.J. Burke said...

Thanks Mikel. Please feel free to call me T.J. I really prefer that over Mr. Burke. Although, thank you for showing that courtesy.

I want to thank you for your input on your latest posting. The trouble with the concept of creating a website, doing a mail out or conducting a poll on mandatory mediation confined to my riding is that many stakeholders involved in the system are spread throughout the Province. If you were to ask an average person what their thoughts were on mandatory arbitration of marital property you may get alot of answers indicating they don't know what it entails. Some may not care since they aren't either married or divorced. So, my point here is simply that having a Task Force composed of experienced people speaking to actual users of our family law system is beneficial. How couldn't it be when you publicly engage the public, court administrators, social workers, judges lawyers, clients, Mother's rights groups, Fathers right's groups, children's groups, etc. I mean aren't these the people who have the most knowledge. I can tell you this for sure. If you don't consult them they wont support your anticipated changes - no matter how good they are!

mikel said...

Nobody is saying not to consult those groups, they would be integral. I knew nothing about mandatory mediation but after ten minutes I at least know what the central issues are-and thats thanks to studies done by many of these groups. That's why I say those groups would be making the presentations-much like they do to commissions.

What I am talking about is how the ultimate decision is made. I am talking about doing it democratically. Either way its done it will cost money to do, so ALL NBers are 'stakeholders'-not just those involved. Those involved would be more active in 'lobbying', but they wouldn't be lobbying politicians but the public.

That helps address that 'cynicism' you speak of in the top blog. People are 'cynical' because they are not involved, not only are they not involved but they know damn well that government doesn't WANT them involved. And for readers out there, however many there are, I suggest you rent or buy 'forbidden forest', since the above is not only clear but its clear that government doesnt' even want the public to have INFORMATION when its involved.

So again, for 'transformation' that is the number one transformational tool in the world-democracy.

The first arguments are that 'people don't have the information', and that is true, but is easily rectified. Just asking people would be like having a poll, which isn't much good for anything. The 'assumption' at the outset is that people won't care, will be ignorant, or won't bother getting involved. THat's true of SOME people, but there is a reason that worldwide virtually the ONLY arbiter of major public policy has been the referendum.

In Europe every country had to hold a referendum on its constitution, while in Venezuela, a country with literacy rates lower than NB's, had a referendum with more than 60 questions on it.

Thats a common assumption in Canada that 'stakeholders' always means everybody but those who foot the bill. I've volunteered with many organizations and have noticed that human beings are natural problem solvers, on the web you often get people just spouting off craziness (I've been accused meself), but thats because people know they don't have to think about issues because they play no part in them.

That's why people are 'cynical', because government has compartmentalized people into various camps in order to deal with them, and its usually the voters themselves who don't even count enough to be 'stakeholders' in the problems of their own province.

Just a final aside, just hours or minutes away this problem would have been resolved or at least attended years ago, because if government didn't act, then the people of Maine have the power to force a referendum on the subject themselves.

MarkM said...
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MarkM said...

Today the New Brunswick Law Society sent an email to its members stating that the province has decided to decline the federal appointment of 3 new family court judges because it does not want to fund the associated support costs. My understanding is that the family division is in dire straights and desperately needs more judges. What is the story here?

T.J. Burke said...

Hi Markm.

You will see my response to that allegation in tomorrow's paper. The short answer to your question is this: Bill C31 is a Federal Bill that allows for the appointment of new Family Court Justices. That Bill has yet to receive Royal Assent. When it does we must proclaim our Provincial Judicature Act (expected to take place in June).

We do not control the Feds timeline as to when they pass their Bills or give Royal Assent. Futher, we do not control when the Feds announce their appointments. This can take months.

The real issue is this; our budget waa announced toay for the Province. You will not see any new money set aside for the accomdation of 3 new Family Court Justices. The reason for this is because the above mentioned uncertainity. As you can appreciate, we do not develop an entire Provincial budget around "when and ifs" much like the Feds refuse to do the same.

Finally, as I stated to the Press and President of he Law Society. It would be extremely counter productive for me to delay new appointments to the Family Court when one of my top priorities is to enhance the system. Certainly, I am more than aware that much of the backlog is because of the lack of Family court Justices in NB.

MarkM said...

Thanks TJ - I don't know enough about this yet, but I will follow the media coverage tomorrow and supplement with my own research. From what you are saying, government seems to recognize that we need more family court judges. A friend-of-a-friend is a social worker and the stories I hear are appalling. As long as this is kept in mind, I suspect the provincial funds will become available in due course.

Thanks again TJ. I'm loving the blog idea - very democratic!

MarkM said...
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