Family law litigants are often surprised by the typical progress of their court case. It may take three months from filing before they see a judge, and that first date is for talking about possible resolution, not for presenting all of the evidence. Then, there is a two or three-month wait–less in some courts, longer in others–for the next chance to talk about resolution with the judge.
What litigants rarely see is the enormous strain that the family court system is bearing. Huge numbers of family cases are filed in Ontario each year, to be dealt with by a relatively small pool of judges. Some cases take up inordinate amounts of judicial time and energy, further slowing down the system.
Many cases deserve that time and focus. When abuse and neglect, harmful treatment, and contemptuous conduct are on the table, the court has to react accordingly.
Others seem to take up all the time available, to much less obvious purpose. One of these is Jewish Family and Child Service of Toronto v. J.Z., 2014 ONCJ 119. Justice Spence, deciding on a complex motion, reviews in great detail the strain faced by the family courts of Ontario and particularly the family courts of Toronto. He works through the numbers as to how much the priority given to this case might be interfering with the rights of other litigants, and finds the following:
 To put all of this into perspective, in 2013 this court spent 20 days on the present trial, or about one-ninth of the court’s entire allotment of sitting days. For 2014, a further 43 days have been allocated. Those 43 days represent approximately one-quarter of the entire allotment of sitting days for 2014. This means that the other approximately 567 cases will have to make do with the remaining 75% of the court’s available in-court time. To put this in the starkest of terms, this case, which represents 0.0018% of the court’s caseload, is consuming 25% of the court’s resources.
Justice Spence’s decisions are always remarkable reads, but this has remained one of my favourites since its release in 2014. The family litigant may never need a judicial decision — most cases in our province settle without ever going to trial. However, many family litigants require the implied or actual pressure of the court in order to reach reasonable settlements. They require the man or woman in the robe and sash to explain to the other party that actually, the suggestion on the table is perfectly reasonable, and the court might do the same thing at much greater expense if the matter is forced to trial.
Cases which unnecessarily take up valuable judicial resources get in the way of the small but vital amount of time courts can give to other cases. It frustrates litigants, lawyers, and judges alike. Decisions like the one above are a useful tool in pushing back against unreasonable expectations of some litigants that they are entitled to all of a court’s time.