Interview with Justice George Czutrin

By Thomas Cromwell

October 2017

George Czutrin

Family law is a flash point for access to justice. Some jurisdictions report that as many as 70 per cent of family law litigants appear in court without legal representation. And with or without representation, the stress of legal proceedings adds to the burden of an already emotionally charged situation. The impact on children of conflict and delay in its resolution is hard to overestimate.

The Honourable Justice George Czutrin is a family law expert, a tireless worker for improvement in family law and the senior family judge of the Superior Court of Justice in Ontario. He has been a family law judge since 1993 and his dedication to the pursuit of improved family law justice is unsurpassed.

Justice Czutrin agreed to be interviewed for this column. I think that you will be impressed and encouraged by what he has to say.

TC — What is your role as senior family law judge?

GC — As senior family judge, along with the chief justice, the associate chief justice and eight regional senior justices, I am a member of the court’s executive and we all sit as members of the Superior Court of Justice’s RSJ Council. The Courts of Justice Act sets out the duties of the senior family judge. In summary, the senior family judge provides advice to the chief justice on specific matters concerning the family court (commonly known as the Unified Family Court), including judicial education, practice and procedure, family court expansion and expenditure of budgeted funds. The senior family judge also performs other duties relating to the family court and all family law cases at the Superior Court, as assigned by the chief justice.

TC — Family law is a flash point in the concern about access to justice. What is your court doing to improve access to family justice?  
 
GC — The reality is that family law is the primary reason most Ontarians will likely need legal help or come into contact with the justice system. As acknowledged by the National Action Committee Report (NAC) on family justice, there have been years of reports and suggested solutions but gaps in implementation, particularly where expenditure of public funds is required. Access to family justice includes access to a properly resourced court, knowledge of legal rights and obligations and access to proper legal advice. Family lawyers and courts cannot and should not be blamed for all the ills of the family process. Continuous discussions, delayed implementation and limited pilot projects have left the courts with limited ability to effect large scale improvements on their own.

I believe that much has already been done and much is still in progress. Relating to the work of the court, we have revised our best practices and practice directions for the scheduling, assignment and conduct of family cases in order to maximize our effectiveness, given the resources that are available. We aim to have family cases proceed in a timely fashion and to ensure that sufficient time is provided for each court event, to facilitate meaningful attendances.

Along with the Ministry of the Attorney General and the Ontario Court of Justice, we have sought the necessary approvals from the federal government to support immediate expansion of the Unified Family Court in Ontario to an additional eight Superior Court of Justice locations, which would bring Unified Family Courts to 50 per cent of Ontario’s population. At the same time, we have delivered a plan to the federal government to support expansion of the Unified Family Court to all Superior Court of Justice locations by 2025. These requests are also consistent with NAC recommendations and we are hopeful that they will receive a positive response. We also run biannual educational conferences for Superior Court judges on pressing family law topics, including how best to work with high conflict families and how to handle complex financial issues.

Last year we also introduced a new annual child protection seminar in memory of our late colleague, Justice Heidi Polowin, who was one of our leaders in that very important area of the court’s work. These educational conferences are in addition to the programs that judges may attend from the National Judicial Institute (NJI) and other providers (e.g. the Association of Family and Conciliation Courts).

The Superior Court of Justice has worked with a number of different family justice partners to introduce real, concrete improvements. This includes a new procedural guide to each step in a family law case and Steps to Justice, which revamped and greatly expanded the substantive and procedural information that is available online for family litigants. Steps to Justice is now embedded into the Superior Court of Justice’s website so litigants can access reliable family law information easily.

The Superior Court also continues to help run a family law student negotiation competition, the Walsh Family Law Negotiation Competition, which is held each spring along with a family law moot, under the umbrella of the Association of Family and Conciliation Courts Ontario chapter. These events have been running for three and five years respectively. This year we are thrilled that students will be participating from every law school in Ontario, including our newest law school in Thunder Bay.

We are constantly working with the Ministry of the Attorney General to advocate for and introduce improvements to the family justice system. This includes the Superior Court of Justice’s Dispute Resolution Officer (DRO) program, which is run in partnership with the family law bar in nine locations in Ontario.

Another example of our work with the family law bar, which we will hopefully secure funding for shortly, is a project that will develop of a roster of family lawyers across Ontario who will provide family law services on an unbundled basis in locations. This resource is intended to address the need for greater access to affordable family law services that was a real focus of the family justice working group’s work in the "Meaningful Change for Family Justice" report.

We also continue to press the Ministry for improved technology to streamline the court process for litigants, the bar, court staff and the judiciary. Smart forms and electronic filings, for example, would help parties figure out what needs to be done and prepare their paperwork without having to attend court. These tools could also make sure that the forms have been properly completed and organized before filing and then direct parties to the next steps towards resolution or adjudication readiness. Unfortunately, it is taking much more time than I would have wanted to make progress on these improvements for a number of reasons.

We are also taking steps to try to address pressing issues relating to complex custody and access disputes. For example, last year we partnered with the Ontario Court of Justice and others (including professor Nicholas Bala and Dr. Rachel Birnbaum, as well as Katina Kavassalis of the Office of the Children’s Lawyer) to develop and implement a very successful Views of the Child pilot project, and we are now advocating for the Ministry to fund the provision of those services to Ontario families on an ongoing basis.

These examples should give you a glimpse into how much effort we have and will continue to expend to go beyond wise words and deliver real, concrete improvements for Ontario families. However, as can be seen from my comments above, it is important to acknowledge that we as a court and even more so as individual judges are limited by what we control. In other words, we are dependent on both levels of government to meet our resource needs (relating to judicial, staff, technology and facility resources).

TC: I am told that more than half of the people in your court do not have lawyers. What would you like to see happen to address that? Who is responsible for addressing this issue? 

GC: There are many things that we are already doing to try to address this challenge, some of which I have already noted. Others, however, require financial commitments, which unfortunately have not yet been forthcoming for the family justice system. For example, limited additional funding from Legal Aid Ontario could (i) support an expansion of the very successful Family Law Project run by Pro Bono Students Canada and (ii) make duty counsel family law services more available at Superior Court of Justice locations.

Unfortunately, family law services have recently been cut by Legal Aid Ontario which will only exacerbate the problem. Several other suggestions for modestly priced enhancements that would have significant benefit are set out in the Superior Court of Justice’s responses to the Ministry’s Family Legal Services Review, which I understand is now available on the law society’s website.

We also continue to consider ways to simplify and further improve the family court process both as a court and also as members of Ontario’s Family Rules Committee, while still ensuring that the court receives the information that it needs under the various family law laws. The Family Rules Committee has representation from all Ontario courts, as well as the bar and the Ministry and is chaired by Justice [Mary Lou] Benotto of the Court of Appeal.

To repeat, improved technology would perhaps be the best opportunity to simplify the gathering of information that is necessary to assist families in resolving issues (within or outside of the court process).

To answer your second question, I think each participant in the family justice system shares responsibility for addressing this issue, given our areas of joint and divided responsibility. This includes both levels of government, which have yet to make the significant financial and resource contributions that we have recently seen for criminal cases.

I also think that ongoing and continuing bar leadership is required in order to make family lawyer services more accessible to middle class Ontario families, which is one of the primary goals of the family legal services pilot that I mentioned above. That can only be expected to come with full support from both the law society and the bar’s insurer (LawPRO).

TC: If you could wave a magic wand and make three changes in family justice, what would they be and why did you select these changes?

GC: The reality is that the court process and our court connected services (FLIC, mediation, DROs etc) already result in more than 95 per cent of all family cases being resolved without adjudication or trial and our judges spend most of their time in assisting families in resolving cases. This is not to say that there is not still room for improvement, which of course there is, but instead that the system is not as adversarial and ugly for the bulk of its users as headlines might suggest.

Turning to your question, the "Meaningful Change for Family Justice" report was national and, as you know, each province was somewhat different in where they stood. My plea at this point is that family justice organizations in Ontario be supported to get on with implementing the concrete changes that we already know need to be made, with proper resourcing, many of which are already at least partially in place. And that our ability to do so not be hindered by additional meetings, forums etc., where we are asked for our input, yet again, about priorities for improvements.

To answer your question more directly, the three pressing areas where progress is essential to help fill the implementation gap are:

1. Technology: We need technology to bring us into the 21st century, so that each family justice participant can work more effectively to meet their responsibilities. We don’t necessarily need to stand in line anymore to do our banking. The process of renewing passports, our health cards, drivers licence or file our tax returns have been modernized. Our family court administrative processes remain cumbersome and paper-based. As noted above, parties need help to complete their paperwork properly in advance of any court attendance, without having to attend court in person to file the documentation.

2. Unified Family Court expansion: We need support from the federal government for the necessary judicial appointments to expand Unified Family Courts in Ontario, first to the eight sites that the court has identified, and then provincewide. Ongoing support will also be required from the provincial government to ensure that these courts have appropriate facilities and staff for the court, the conferences, motions, or hearings of family cases.

3. Ongoing support and funding for the necessary supportive services: We need to ensure that family court services, including mediation, DROs, Mandatory Information Programs, Supervised Access services, Legal Aid etc. have sufficient and sustainable funding so that the system can keep up with increasing demand. These family justice services are essential for the successful transition of families to their new realities post-separation.

We have seen the dangers of overreliance on volunteers in family law and must remember that many family lawyers are already doing a significant amount of work on a volunteer basis or at reduced rates (either on their own, through Legal Aid, the Office of the Children’s Lawyer, mandatory information programs, etc.).

I am hopeful that we will start to see real, concrete steps forward in these areas in the foreseeable future to ensure that we are able to meet the needs of separating families in Ontario going forward.