Under the new framework, which is still being developed, if one member of a divorcing couple wanted to opt into the alternative process, the other person would have no choice.Krivinis/Getty Images/iStockphoto
Manitoba is moving swiftly to create an alternative to the clogged family law courts that will reduce the role of lawyers and allow independent decision-makers to intervene in acrimonious divorces.
The initiative, which is believed to be unique in North America, is designed to create a faster, cheaper, less adversarial system, but it is already raising concern in the legal community over fairness, rush and lack of consultation.
Under the new framework, which is still being developed, if one member of a divorcing couple wanted to opt into the alternative process, the other person would have no choice.
"It's not lawyer-driven," says Allan Fineblit, a Winnipeg lawyer chairing a committee that is developing the new approach at the request of Attorney-General Heather Stefanson.
"It's driven by an independent party who is focused on fair and effective resolution rather than winning the case."
If divorcing spouses cannot reach agreement on issues such as child support, custody, access or division of property, an independent decision-maker would reach a resolution for them, Mr. Fineblit said. This would be deemed a "recommendation"; it would still need to go to the courts for endorsement. Under federal law, only a superior court has the jurisdiction to grant a divorce.
Ms. Stefanson announced the creation of a select committee of four judges, four lawyers and two laypeople last week, describing the current system as "too often highly adversarial, and irreparably damaging for families, especially for young children."
The committee has been given a tight deadline. Ms. Stefanson says she would like to be able to introduce legislation as early as the spring.
Family practitioners contacted by The Globe and Mail expressed concerns or raised questions, saying that there had been no consultation so far on the new framework and questioning whether a new approach would be fair and just.
Jurgen Feldschmid, head of the family-law section of the Manitoba Bar Association, said no one has consulted with the bar association.
"We keep adding on layers, thinking we can divert that hard-core, 2 to 3 per cent of litigants from self-destructing, not really acknowledging that the vast majority of people who file for divorce do so very collaboratively."
Lawrence Pinsky, a family lawyer in Winnipeg, said he wonders if the rush to produce a new approach will leave enough time for consultation and careful consideration of many challenging issues.
"What I'm talking about is the right to be heard, the right to have notice, the right to have proper representation. Even the right to appear before a judge without having some investigator who may or may not be trained appropriately issue some report." He said that, in the courts, "almost always, it's not the lawyers who are driving some agenda. They're taking instruction from their client."
In an interview, Mr. Fineblit, a former chief executive of the Law Society of Manitoba, described the basic features of the new system, while stressing that it is "not written in stone."
"This would create another option for resolving family disputes. But it's the default option, unless both parties opt into the regular court-based model." The reason, he said, is that more powerful or wealthy parties to a dispute now may see it as advantageous to go through a court process that "sucks the life and resources out of the other side."
Mr. Fineblit said he is not aware of a similar model in North America. Australia requires separating couples who have a dispute over their children to go to family-dispute resolution, facilitated by an independent third party. If that process fails, then they may go to court.
Under the proposed framework in Manitoba, either spouse could start the alternative process by filing a brief, simple document, without notice to the other spouse. An administrator would receive the document and notify the other spouse. That administrator would assess how to resolve the dispute in a collaborative way and point them to the resources they need – for instance, advisers in accounting or pensions, a mediator or a collaborative family-law process. "Some of these resources exist, some would need to be created," Mr. Fineblit said.
If they reach an agreement, an administrator would decide whether it is reasonable and complete and then recommend that it be approved. From there, one option is that it would go on to an adjudicator, who would supply a second layer of scrutiny. (Another option is to do away with the adjudicator step.) The adjudicator would then make an order in support of the agreement, which would go on to the Manitoba Court of Queen's Bench for endorsement.
If the couple doesn't reach an agreement, an administrator would have the authority to conduct an investigation, with broad subpoena powers to obtain relevant documents. The administrator would make a recommendation to the adjudicator. At that point, the adjudicator would receive submissions from the divorcing couple. (The individuals could make the submissions on their own or they could retain lawyers to make them.) The adjudicator would then make a decision, which would ultimately go to the Court of Queen's Bench for ratification.
"It is a process we're going to vet and see what's missing, what are the risks associated with this, and what do you need in terms of resources to make it effective," Mr. Fineblit said.
The presence of a reluctant participant would not mean reaching consensus is impossible, he said. "You don't have a choice but to be in the process, so you have to make it work for you."
For those who don't come to an agreement, an administrator will make a determination of the facts and recommend a resolution. "So you'd be crazy to play games with that if you're a party, whether you wanted to be there or not."
He said the current, court-based approach often does not work well in the emotional sphere of divorce.
"People are emotional, their judgment is flawed. They get into a battle that is partly about what they're fighting about and partly about 20 years of things they fought about during their marriage."
Sean Fine