Minister says kids pay price for backlog of cases yet to be dealt with

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By Jesse Robichaud
Times & Transcript Staff

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Justice Minister T.J. Burke has seen the province's family law system from several perspectives.

As a child, his father refused to pay child support payments, and as a practicing lawyer he worked with parents and children facing the same frustrating circumstances. Now, as justice minister, he has the opportunity to overhaul the system.

And after reading a draft report from the province's family law task force, led by retired family court judge Raymond Guerette, Burke says that is exactly what he will do in order to expedite hearings and cut waiting lists that punish children.

"When we first moved back from the United States, there was a court order put in place that my father pay child support, and he never paid a dime ever, and things were tough," says Burke.

"I practiced representing people who faced similar situations like mine, and I have carried that forward as justice minister, keeping in mind that there is always two sides to every story."

While Burke recognizes that each case is different, he says it is unacceptable for a deadbeat parent to refuse to child support when they are financially able to do so.

With that in mind, he intends to bring forward the largest ever reform of the province's family law system.

He hopes to cut down waiting lists that frequently leave parents and children in the cold for nine to 15 months before they are ever able to meet with a judge in order to arrange preliminary conditions around child support, custody, and children's access to their parents.

By introducing a new program that will allow parents and children to access courts immediately, Burke intends to ensure the entire process will take no longer than 120 days before conditions around support payments, custody and access have been established through a court order.

Burke says it is vitally important to cut down on waiting lists because time also means money to single parents who are struggling to make ends meet as they raise their children.

He says parents will also receive relief from crippling legal fees.

"Parents who go to court will no longer have to pay tens of thousands of dollars for lawyers, they won't have to wait nine months, 12 months for a court to even hear a temporary matter of child support, custody and access," he says.

"They will be able to get instant relief from the courts. We will have, without any doubt, one of the most efficient family court systems in the entire country if this report is implemented in its entirety."

Burke admits the current system isn't working for New Brunswick families and children are paying the price.

That is because in a typical divorce case, a parent can wait as long as two months in the phase of collecting preliminary documents before waiting another nine to 12 months before receiving a temporary order for custody, access, or child support.

And that wait is only for a temporary court order and represents only the beginning of what can be much more frustrating situations.

"If you think about it, there are about 15 months that have gone by that children have suffered as a result of the system, and we want to fix the system that is making children suffer," says Burke.

"This model here will require judges to hear those cases immediately, and not hear them one by one, but hear them en masse."

Burke says the report recommends the establishment of special "triage days" during which judges would literally pass through every custody, access, and child support motion on their schedule.

"Basically you have one day a month in one jurisdiction where a judge has got to hear almost every single motion that is before him or her, to decide the basic concepts that A, children need a place to live, the parents need an access schedule, and children need child support," he says.

"There are other jurisdictions in the country that can hear about 15 to 20 motions once a month on one particular day."

Burke says a similar initiative in Ottawa has cut down the number of situations that actually need to receive a hearing in front of a judge to only two per cent.

He says that will help unclog family court rooms and give judges a chance to deal with complicated and delinquent cases more rapidly.

The triage days will allow cases to be rerouted through the most appropriate options rather than piling up on a court docket.

He says the changes will require a massive reorganization of the entire system, but he says it will not cost taxpayers much money. In fact, he says the changes could be revenue neutral.

Access to legal aid and other affordable legal options will also be a focus of the report's final recommendations, says Burke.

The report's final recommendations could be implemented as soon as the spring sitting of the legislature, but Burke says its full impact will require a co-operative effort from lawyers and judges who form the backbone of the province's family law system.

"We can change things from a regulatory and legislative capacity, and we can make the appointments we need to make to make the system work properly," he says. "But we need co-operation from lawyers in the province who represent those who are in family law court, and we need 100 per cent co-operation from judges who will, on a day-to-day basis, implement our changes to make the system better."

Maria Henheffer, a family lawyer in Saint John and past president of the New Brunswick law society, says many lawyers who have publicly urged Burke to address the backlog in the province's family law system.

"The most critical concern has always been the delay, the length of time it takes for people to have their problems initially, and to have their problems addressed fully and completely," she says.

She says Burke's first priority should be to have cabinet proclaim legislation that will make the hiring of three new family court judges possible.

Henheffer says the federal government signed off on the new judges officially in mid-June, but she says the file has continued to stagnate.

"We have had a shortage of judges for a very long period of time, which was hoped to be remedied, which still hasn't been remedied."

A spokeswoman for the Department of Justice, Valerie Kilfoil, says the legislation was supposed to be proclaimed in early August, but it was delayed unexpectedly. She says the legislation will be proclaimed shortly.

While Burke says the changes he envisions will not be very costly to the system, and could actually be revenue neutral, Henheffer wonders how real changes can be made without new resources.

"We have a shortage of overall resources addressed to the family court system," she says. "I am talking human resources as well as financial resources."

Although she has not read the contents of the report, Henheffer says Burke must implement its recommendations in their entirety in order to avoid solutions that are mixed and matched in a haphazard fashion.