A revealing look at the ponderous and time-consuming judicial system

Inspired by National Post columnist, Christie Blatchford, and her take on justice in her article “How I fell out of love with our justice system” which is an excerpt from her book Life Sentence, I felt compelled to add my 2 cents.

This may be my last column if I am jailed or disbarred for it, but after 35 years in the business, I have a right, indeed an obligation, to expose some of the wrong doings we lawyers have to deal with daily when entering a Courthouse.

I’ve been to the Rental Board (don’t get me started) Municipal Court, Quebec Court, Superior Court, Appeal Court and even 2 of my first cases both ended up there for Leaves to Appeal. And rarely, although it does happen, does Justice, at least the public’s version of it, eek forth, be it procedurally or in Judgments.

Almost every year at the “opening of the Courts” which occurs in September, we hear about “accès à la justice”. That is the alleged goal we lawyers are told the powers that be strive for (politicians and the magistrature, (who, lest you forget, are appointed by the former).  And who do they blame every year for all the problems of delays and costs?  LAWYERS!

Well, if any year had actually succeeded in this goal why do we still get the speech year after year after year.

When my first boss used to regale me with stories of his early career in family law, the files were the thickness of the comic section in the Saturday Gazette, and then most of his file were the photos one needed to prove adultery. Back then there wasn’t no fault divorce and lawyers had to prove why their clients wanted a divorce and usually it was with photos; after all, photos speak a 1000 words.

But as time has gone by, those thin files have been replaced by large expandable accordion folders. Why? Because over time the “powers that be” have decreed that forms are required – for almost everything. In the mid-80’s forms to decipher the articles of law pertaining to compensatory allowance became mandatory. With the advent of Family Patrimony in 1989 another form was added and until they were done one couldn’t obtain a trial date. Then budget forms were expanded and after the 1997 Supreme Court case that made child support a net payment, we had to complete a special budget, computer generated, to tally up what magic net number was payable.

But why stop there. A one page form under then Article 827.5 contained the necessary information so that the Perceptor’s Office (Big Brother as I call it) could know where to send their Notices of payment so employers would send, not voluntarily, a percentage of an employee/debtor’s pay to the Government who then sends it to the recipient creditor for the alimentary spousal and child support orders rendered in Court, all because of the alleged rampant “dead beat dad” syndrome that maybe pertained to 10% of all concerned.  This was more about job creation than access to justice and it took lawyers years to get a Court of Appeal order to inform the Perceptor that we still had a right to seize wages and assets for arrears of support on behalf of our clients, as prior to that Judgment only the Perceptor could act and they were much slower to execute due to bureaucracy than lawyers were.

Moving on, certain forms were modified or even replaced with more forms, usually longer and more complicated. There were even forms to declare that the other forms were done!

Don’t forget, every year we were and are still being told that all this paperwork makes access to justice quicker and cheaper! Boy is that not true. The time it takes to complete some of these forms with the information one needs to do so can be time consuming and onerous, and yes costly!

But heh, it didn’t stop there. Then came the form to end all forms, a Joint Declaration of Readiness, by which both sides list all the proof they intend to make, all the forms they have produced (examinations, undertakings, documents to admit (or deny) etc…) or will produce by such a date, and the list of witnesses for each side along with (and here is the rub) the time of questioning each on direct, in cross and on redirect. Add all that up and we are supposed to have determined the exact length of time a trial will take. Firstly, these forms were for all cases of 3 or more days in duration then for a 2 day trial, usually a date = 6 hours of actual Court time, after one arrives, attends roll call, waits one’s turn to be referred, waits for a Judge to review the file which sometimes involves actually reading all these forms clients have spent thousands and thousands of dollars having their lawyers prepare, and then there are often preliminary representations before the Court on admissibility, witnesses, etc. All to say whatever times were estimated can fly right out the window (if Courtrooms in fact had windows) and this is without considering any interventions by the Judge, whose time is not considered save for guesstimates on the form! And let’s not forget that neither are the answers to those questions. We are supposed to again estimate to get a Court date.

I have personally seen a party or a witness of the party, make innumerable soliloquies in response to simple questions and there is no way to know in advance who will do that, nor how long they will take. So an examination of 1 witness for 2 hours can and has taken a day and the timetable is again out the proverbial window.  Except that lawyers are blamed by the Judge, not the witnesses.

I have also spent an hour in Court when a Judge has had lawyers establish “the order of things” an hour not known to the lawyers when completing the form; and while a Judge can cut off a lawyer’s proof for exceeding the estimated time, try cutting off a Judge!

And just when the entire process was familiar, Quebec City changed the entire Code of Civil Procedure, with important new terms that include Notice not Service; Application not Motion; and Written Statements not Affidavits and notions or missions; such as proportionality and abuse, length of and number allowed for examinations, and the biggy, Case Protocols that set out everything each side will do and when they will do it. This was formerly known as an Agreement to the Conduct of Proceedings, but now much more onerous and binding.

Don’t you just love how parties, in the throws of initial litigation, emotional when concerning family law, are supposed to address all these issues at the get go all within 45 days of institution of their case. You can be married for 30 years but God help us if we can’t complete this form in 45 days! Then the Court system has 20 days to decide if the Protocol is okay; if not, a “notice” is sent that a Case Management Conference must take place within 30 days from that notice, another cost to the clients; and the Protocol is binding under pain of sanctions and it can’t be changed without going to Court for authorization [more costs]. Access to Justice, isn’t it grand!

(More on all these helpful forms and access to justice in future segments, if I can write while under investigation for subversion!)

Me. Hammerschmid has practiced Family Law since 1982; Senior Partner at Hammerschmid & Associates; founding & current member of Family Law Association of Quebec (past Secretary for 28 years). Inquiries treated confidentially: 514-846-1013 or hammerschmid@vif.com © 2016 Linda Hammerschmid 

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