The crisis of delays in the family court system: Justice delayed is justice denied

Timely resolution of legal disputes is not merely an ideal in family law, it is a vital necessity for families who are undergoing the traumatic process of divorce.

In Ontario, the increasing delays in the court system are wreaking havoc on separating spouses, particularly when it comes to critical issues like parenting arrangements, child support and the division of property. The ideal of swift justice is slipping further out of reach as court backlogs continue to mount, undermining the ability of families to move forward and rebuild their lives following a breakup.

The delays within Ontario’s family courts have reached crisis levels, with mounting evidence that justice is not being served in a timely manner. For many separating spouses, the legal system is supposed to provide clarity, closure and a pathway forward. However, when divorce proceedings drag on for years due to a strained judicial system, it only exacerbates the emotional and financial toll on families. Parents are left in limbo, uncertain about childcare arrangements and support obligations. Spouses remain trapped in their home together because their marital assets are in dispute, and they cannot access a judge to settle their affairs and move on with their lives.

Recent data on court backlogs following the COVID-19 pandemic underscores the scale of the crisis. For instance, in Ontario, the courts faced over 67,000 cases pending resolution in 2021-22, creating a significant delay in the family law sector. These delays mean separating families have to endure prolonged uncertainty, often leading to heightened stress, prolonged financial strain and more conflict between parties.

The legal principle “justice delayed is justice denied” resonates particularly strongly in the context of divorce. When couples cannot resolve their issues it can have profound consequences for all involved — especially children. Parents may face a situation where they are unable to fully plan for their children’s future, secure new housing, choose schools, purchase a new home or begin a new chapter in their lives because of the extreme court delays. Without a prompt resolution, parents and children experience unnecessary hardship that could have been avoided if Ontario’s legal process were more responsive and accessible.

Furthermore, unresolved legal disputes can exacerbate — not reduce — the pre-existing conflict between spouses. When there are significant delays in finalizing parenting arrangements or setting up financial support structures, couples often engage in prolonged disputes that can be damaging to both the parents and children involved. What should be a process of summarily establishing new boundaries and responsibilities instead becomes a drawn-out battle that harms everyone.

The frustration that arises from protracted legal proceedings often leads to a loss of faith in and abandonment of the judicial system, resulting in some spouses reaching for extralegal means to address their issues. This is not a hypothetical concern; it has real-world implications.

When couples are forced to wait for years for court resolutions, some take matters into their own hands in ways that do not align with the law. This kind of behaviour poses serious risks, especially when it involves the well-being of children, support or the equitable division of assets. This may manifest as unfair and improvident agreements, verbal commitments that are not legally binding or even the unilateral imposition of new parenting and financial regimes that would never have occurred if the court system were accessible. This leaves many individuals without the protections of the legal system and undermines the very principles of fairness and justice.

There is an urgent need for reform. It is critical to address the backlogs in the family court system and introduce measures that can expedite proceedings. This would not only provide a fairer and more efficient resolution for divorcing couples but would also restore faith in a system that is struggling to meet the needs of its citizens.

It is critical that the province increase the capacity of courts to handle family law cases by allocating more resources such as increasing the appointment of judges, mediators and triage clerks. By early triage, diversion out of court and mandating family mediation will help relieve pressure on the court, and those cases that require an adjudication by a judge can be handled quickly and efficiently.

The delays plaguing the family court system are not just an inconvenience, they are an injustice to those who are already undergoing one of the most challenging times in their lives. For divorcing couples, the inability to quickly resolve disputes like parenting, support and property division undermine the foundation of their lives and, more importantly, the well-being of their children. By reforming the system to reduce delays and enhance access to timely justice, Ontario can work to restore public confidence in the family justice system and ensure that all families receive the prompt and fair resolutions they deserve. The stakes are high. In divorce law, as in all areas of the legal system, justice delayed is not just inconvenient — it is justice denied.

LINK: This was published on Law360 Canada on November 7, 2024 at https://www.law360.ca/ca/family/articles/2258191?nl_pk=7c6da485-9eed-4d6a-82cc-df1fe518c7bc&utm_source=newsletter&utm_medium=email&utm_campaign=ca/family&utm_content=2024-11-08&read_main=1&nlsidx=0&nlaidx=1

Steve Benmor, B.Sc., LL.B., LL.M. (family law), C.S., is the founder and principal lawyer of?Benmor Family Law Group , a boutique matrimonial law firm in downtown Toronto. He is a certified specialist in family law and was admitted as a fellow to the prestigious International Academy of Family Lawyers. He is regularly retained as a divorce mediator, arbitrator and parenting co-ordinator. As a divorce mediator, he uses his 30 years of in-depth knowledge of family law, courtroom experience and expert problem-solving skills in divorce mediation to help spouses reach fair, fast and co-operative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court. You can find his CV at?https://benmor.com/wp-content/uploads/2023/12/Steve_CV_Nov23.pdf . He can be reached at?[email protected] .??