There are moments in legal practice that leave a lasting impression – not because the law was difficult, or because the facts were complicated, but because the system itself failed the very people it was designed to protect.
One of those moments came a couple of weeks ago. As a proud lawyer, mediator and arbitrator in this province, I have always believed deeply in the administration of justice. I believe in the rule of law. I believe in fairness. And I believe that our courts, at their best, exist to provide families with structure, accountability and justice during some of the most difficult moments of their lives.
But I am deeply disappointed with the current state of Ontario’s family court system. The truth is simple: it is failing families. And when the system fails one family, it fails all families. What makes this failure even more frustrating is that Ontario has already acknowledged – decades ago – that family law is fundamentally different from every other area of law.
Before 1999, family law proceedings in Ontario were governed by the Rules of Civil Procedure. In other words, the exact same procedural rules that governed real estate law, employment law, personal injury law and commercial law also governed family law matters.
But then something important happened. Ontario recognized that family law could not – and should not – be treated like every other area of law or type of litigation. The province created the Family Law Rules.
That decision mattered.
The very existence of a separate and distinct set of rules – the Family Law Rules – reflects a recognition that family disputes involve unique dynamics, unique vulnerabilities and unique responsibilities. The rules were specifically designed for cases involving spouses, parents and children. They were created to govern the conduct of the participants in the family justice system – the litigants, the lawyers and the judges.
Ontario did not create unique procedural rules for real estate law. Not for employment law. Not for personal injury law. Not for commercial law. It created a separate system of rules exclusively for family law because family law is different.
And if family law is different enough to require its own rules, then surely it is different enough to require judges with proper family law knowledge, experience and training. Yet that is precisely where the system is breaking down.
Two weeks ago, I observed a case in which the assigned judge appeared to have little to no understanding of how the Family Law Rules are intended to operate. The judge made a series of procedural and substantive orders that, frankly, should never have been made in a properly functioning family court environment. The issue was not simply judicial discretion. The issue was a fundamental lack of familiarity with family law principles, procedures, standards and norms. This judge just did not know family law. After further investigation, it became apparent that this judge had no background in family law, had not practised family law and did not know how the Family Law Rules operate. Despite this, she was assigned to preside over a family matter involving real people, real children and real consequences.
That should concern every Ontarian. Family law cases are not abstract legal exercises. They shape the lives of children, their parents, their financial survival, their emotional wellbeing, and their long-term stability and integrity. The consequences of poor decision-making in family court can echo for years. Appeals are not a realistic remedy. And yet Ontario continues to operate a fragmented family justice system where, in too many instances, judges without sufficient family law expertise are asked to preside over highly specialized disputes governed by a unique set of procedural and substantive rules.
This is precisely why Ontario desperately needs a truly province-wide Unified Family Court system. Not partially unified. Not regionally inconsistent. Not dependent on geography or judicial assignment luck. Unified Family Courts are staffed by judges who are specifically trained, experienced and competent in family law. They know the substantive, legislative, procedural and jurisprudential laws governing families in Ontario.
In any Ontario hospital, a cardiologist is assigned to a cardiology patient. In any public school, a French class is assigned to a French language teacher. In the construction of a bridge, a properly educated engineer is assigned to its design and completion. If Ontario has already recognized that family law requires specialized procedural rules, then it must also recognize that those rules require specialized judicial expertise.
Rules alone do not create justice. People do. And when the individuals applying those rules lack the necessary background or understanding, families suffer.
Lawyers are expected to know the Family Law Rules. Litigants are expected to comply with them. So why are we reluctant to insist that every judge presiding over family matters possess meaningful family law expertise as well?
This is not an attack on the judiciary. Judges carry enormous responsibility and work under tremendous pressure. But assigning judges without family law experience to complex family cases undermines public confidence in the administration of justice and jeopardizes the fairness of outcomes.
Ontario can – and must – do better. Families deserve better. Children deserve better. The Family Law Rules were created because family law is different. That principle was recognized more than 25 years ago. Now the province must finally take the next logical step: ensuring that family law cases are decided by judges who truly understand family law. Until that happens, Ontario’s family court system will continue to fail the very families it was meant to protect.
This article was recently published in LexisNexis’ LAW360 at: https://www.law360.ca/ca/family/articles/2482439/family-court-system-continues-to-fail-ontarians
Steve Benmor, B.Sc., LL.B., LL.M. (Family Law), C.S., Cert.F.Med., C.Arb., FDRP PC, Acc.D.C., is a full-time Divorce Mediator/Arbitrator and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto. He is a Certified Specialist in Family Law, a Certified Specialist in Parenting Coordination and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator/Arbitrator and Parenting Coordinator. Steve uses his 30 years of in-depth knowledge of family law, court-room experience and expert problem-solving skills in Divorce Mediation/Arbitration to help spouses reach fair, fast and cooperative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court.
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