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Family law is very different from other types of law. You cannot decide who gets child custody or whether a child should be taken
away from her parents the same way you decide whether a physician is guilty of malpractice. But until recently, family law cases were
decided in the same courts as contract cases, shareholders' suits against corporations, and defamation cases. Now,
Courts have been created in many parts of Canada to deal with the unique nature of family law disputes.
Unified Family Courts
A Canadian or Ontario Unified Family Court (UFC) is a court with jurisdiction over all legal issues related to the family, and that does not deal with any other kind of case. There are at least five different ways in which UFCs have greatly improved how family law cases are resolved.
A single court deals with all family law issues.
Imagine having two lawsuits at the same time about the same issues. What a waste of time and money that would be. Yet in places where there are no UFCs, this can easily occur in family law cases. It can even happen that one court makes an order that conflicts with an order from the other court. UFCs resolve this problem by dealing with all of the disputes involving a family in one place.
The reason for this problem is the peculiar nature of Canadian federalism. The federal government has jurisdiction over divorce, division of matrimonial property and other injunctive relief. The provincial governments have jurisdiction over adoption, child protection matters, and property disputes between spouses. Both governments have jurisdiction over spousal support, child support, child custody, and access, but if a divorce is involved, the federal government's jurisdiction is primary.
The overlapping jurisdiction between the two levels of government means that the two governments must agree on how a UFC must be run. As with anything that requires intergovernmental cooperation, this was not easy to accomplish. However, now a basic model has been developed, and it is spreading throughout the country. At present, UFCs exist in Ontario, Newfoundland, New Brunswick, Nova Scotia, Manitoba and Saskatchewan. Alberta is currently considering establishing UFCs.
In a UFC, all the judges have a particular interest, aptitude and expertise in family law. Family law cases are all they deal with the entire day. This means that the judges have a better grasp of what the law is and where it is heading. This is in contrast to the normal situation in a court, where judges are generalists and often have no background in family law.
The specialisation allows for more efficient handling of cases. For instance, on a spousal support motion at a UFC, it is not necessary to spend any length of time explaining to the judge what the law is, as the judge is already familiar with the law on spousal support and may have written several leading decisions on the subject. This allows for a better use of court time. It also reduces the amount of work a lawyer must do, resulting in cost savings for the lawyer's client.
The specialisation of the judges also means better decision making, as the judges are familiar with the unique dynamic of family disputes. In addition, the specialisation is also beneficial for the development of the law. The judges are constantly trying to find better solutions for the problems they see regularly.
Availability of mediation.
The traditional legal process is adversarial in nature. There is a fight; there is a winner, and there is a loser. This does not work well for family law disputes. When you have two good parents, how can a judge really decide who should get child custody? The best solution is for the parties to work out the parenting arrangements between themselves.