Justice system for families?

• Author: Boll, Rosemarie

Our justice system has one basic function -- to solve disputes. All types of disputes come before our courts -- the government charging a person with a criminal offence, companies disputing the interpretation of a contract, neighbours squabbling over property lines, parents seeking custody of their children. All these litigants are entitled to their day in court. But that day in court comes at an enormous cost. Participating in our justice system is complex, time-consuming and expensive, and the result may not be worth the price of admission.

The justice system was not always this complex. When communities were small and isolated, disputes had to be solved quickly or they could threaten the very survival of the community. They solved disputes through death, dictate, dynasty, or discussion. As communities grew larger and merged together, they grew stronger. A stronger community could withstand more internal disputes, and increasingly formal, structured processes evolved to solve them. By the time societies were industrialized, formal dispute resolution systems were firmly in place. Our present legal system serves to solve disputes and uphold three basic principles:

1. The solution should be nonviolent,

2. Individual rights should be protected, and

3. Equal rights should be protected.

However, this legal system evolved from non family conflicts such as commercial disputes and criminal matters. The community still dealt with family matters in the old ways -- death, dictate, dynasty, and discussion. To people embroiled in family disputes, this seemed unfair. They wanted the same protections and benefits as other litigants, so they too sought access to the courts.

When the courts started hearing family law cases, the judges treated them the same way as any other cases. They applied the rule of law without considering that it may not provide the best solution for people who are intimately involved with each other. For example:

* the dispute doesn't involve just the one plaintiff and the one defendant who show up in court. Children, other family members, new partners, creditors, employers, and others in the community feel the effects of family breakdown.

* human emotions that would be irrelevant in other lawsuits are major factors. People may feel angry, vengeful, hurt, or betrayed. Sometimes litigants are so motivated by punishment and vengeance that they do everything possible to keep the fight going. Even after the court makes a judgment, the...