In the News

Alas, no one gets a quick divorce in California anymore. The state of California, on the brink of fiscal disaster, is axing funding to the administration of civil justice. That means longer delays in getting anything done, including a divorce.*

In San Francisco alone, 25 courtrooms will be closed and more than 175 employees will be laid off this fall. Presiding judge Katherine Feinstein of San Francisco Superior Court estimated that the average time for a divorce would be at least 18 months. All other civil matters, including small claims, civil and class-action lawsuits, probate, and bit-money complex cases, will take longer.

However, San Francisco isn’t alone when it comes to budget cuts. Judge Steve White of the Superior Court in Sacramento, the state capital, said that their service windows have been reduced from 10 to 2, leading to waits of five or six hours. People now bring lawn chairs and arrive before the counters are open.

In Ontario, the average wait time for an uncontested divorce in Toronto is 4 to 6 months.+

* Jesse McKinley, “As Budgets Continue to Shrink, The Lines Will Grow in California Civil Courts,” The New York Times (24 August 2011), online: The New York Times <http://www.nytimes.com/2011/08/24/us/24courts.html?_r=1&pagewanted=1#>

+This is my personal estimate. The actual wait time will vary.

On April 12, 2011, Justice Mackinnon of the Superior Court of Justice granted the wife of convicted murderer Russell Williams, now identified as M.E.H., an anonymity order and a partial publication ban on the details of their divorce.*

By motion, the wife sought to have the entire matrimonial proceeding sealed to protect her fragile mental health as a result of Mr. Williams’s convictions for first-degree murder, sexual assault, and forcible confinement and the ensuing public and media attention. The motion was opposed by a number of media intervenors.

It’s said that a sealing order is a blunt tool. It will adversely affect a democratic society’s reliance on a transparent and open judiciary. Therefore, a complete sealing order is rare, except in a handful of areas, such as when dealing with young offenders.

In fact, the Supreme Court of Canada has long taken the open court principle very seriously. In 1989, the Supreme Court of Canada struck down provisions in Alberta’s Judicature Act prohibiting publication of most details of matrimonial proceedings.^

More recently, the Supreme Court of Canada restated the importance of the open court principle in Canadian Broadcasting Corp. v. Canada (A.G.).+ Justice Deschamps stated that the open court principle “ensures that citizens have access to the courts and can, as a result, comment on how courts operate and on proceedings that take place in them.”

At the same time, the open court principle also mandates access to justice by citizens. The proper administration of justice must allow litigants access to the court to obtain relief that they are lawfully entitled to without sacrificing their mental and physical health by doing so. For example, victims of sexual assault should be afforded protection of anonymity, lest one more deterrent discourage such victims from coming forward.#

In the present case, the judge found that the wife had demonstrated she would face real risks to her mental health (e.g., beyond personal embarrassment and discomfort) if a privacy order were not granted. At the same time, a sweeping sealing order keeping the entire file from the public was seen to be unjustified as it would have too great an impact on the open court principle.

In striking the delicate balance of the public interest and the real risks of harm to the wife, the judge deemed it appropriate to place a partial publication ban on information that serves to identify the name, address, or contact information of the wife. Sensitive information, such as medical reports, social insurance number, date and place of the wife’s birth, and certain financial transfers were also banned from publication.

*H.(M.E.) v. Williams (2011), 105 O.R. (3d) 344 (Sup. Ct.)

^Edmonton Journal v. Alberta (A.G.), [1989] 2 S.C.R. 1326, S.C.J. No. 124

+[2011] S.C.J. No. 2, 2011 SCC 2

#T.(S.) v. Stubbs (1998) 38 O.R. (3d) 788 (Gen. Div.)

This blog is provided for your reference only and is not a substitute for the law. The law may have changed since the publication of this article. This article is not legal advice and should not be regarded as such.

Effective today, Monday, July 18, 2011, all Ontarians who seek a divorce must attend a mandatory information session before the divorce application may be filed.

Once the parties have attended the mandatory information session, they have access to publicly funded mediation services if they wish to resolve their differences privately.

For couples in Toronto, the mandatory family law information session isn’t something new, however. It has been mandatory in Toronto for the past several years. It is now made compulsory throughout the province.

From my experience, the mandatory information session is too little, too late. By the time the matter reaches the court, the parties may have become too positional for any meaningful interest-based alternative dispute resolution to work.

I contend that the mandatory family law information session, while it may be helpful to some, doesn’t go far enough. A program such as a mandatory mediation session (i.e., a claim cannot be filed without a mediator’s certificate of completion) may be necessary to implement real change.