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The mounting wave of unrepresented litigants, and the many unmet legal needs which Canadians experience, demand innovative responses that go beyond the traditional call for more state-funded legal aid. The argument of this paper is that excessive regulation of legal services is partially responsible for Canada’s access to justice crisis. Regulation of legal services serves important public interest goals. However, the argument of this paper is that it also reduces competition and innovation, and increases price. It therefore impedes access to justice and drives up the number of unrepresented litigants. Some market entry and market conduct regulations appear to be stricter than they need to be to accomplish their legitimate goals, and others may not even have any legitimate goals. Policy-makers seeking to increase access to justice without spending public money should consider reforming these elements of the regulatory regime.

Custody and access disputes occur when parents separate without agreeing about how to divide the on-going rights and responsibilities of parenthood. This article reports on empirical research with child custody evaluators who deal with these cases on a regular basis. On paper, the role of these professionals is to gather information and then make decisions about what parenting arrangements would be in the best interests of the children. However, the central finding of this research is that, in practice, their primary goal is to bring about voluntary settlement of the disputes. This article proposes an explanation for this phenomenon which is based on the evolution of custody and access law, procedure, and ideology over the past 30 years. The rise of the "logic of durability" is proposed as an explanation for the concerted pursuit of settlement among both child custody evaluators and family court judges.

Judicial dispute resolution is common in family courts, where it usually consists of informal efforts to bring about settlement in pre-trial conferences. Many judges are especially eager to promote settlement in child custody and visitation cases. This paper will critically evaluate informal JDR in parenting disputes, by asking whether and to what extent it is in the best interests of the children involved. It begins by identifying several features which distinguish custody and access disputes from other types of civil litigation, and which are relevant to the normative analysis of JDR in this context.

North American family law conflicts are very often brought to mediation, in which a neutral third party attempts to bring about a voluntary resolution of the spouses’ dispute. Family mediation has many enthusiastic supporters, and has in many jurisdictions been made a mandatory precursor to traditional litigation. However, it has also given rise to a potent feminist critique, which identifies power imbalance and domestic violence as sources of exploitation and unjust mediated outcomes. This article summarizes the feminist critique of family mediation, and assesses the efforts of contemporary mediation practice to respond to it. Even in the absence of formal family mediation, litigating spouses are likely to be subjected to substantial informal pressure to settle from judges and other family justice system workers. The article argues that the feminist critique might be more relevant to this “settlement mission” than it is to formal family mediation as it is practiced today.

The judicial role in child custody and visitation disputes has traditionally been understood as one of authoritative decision-making. However this new empirical research suggests that many family court judges prioritize the pursuit of voluntary settlement in pre-trial conferences, using evaluative and facilitative mediation techniques. Drawing on qualitative interviews with judges and other family law professionals in Toronto and New York City, this article identifies points of consensus and controversy among settlement-seeking family judges. Despite the general support for settlement-seeking, there are substantial differences of opinion regarding coercion, due process, and the meaning of the best interests of the child standard.

Is litigating the best interests of a child a contradiction in terms? This portfolio dissertation asks this question with regard to child custody and access disputes, in which separated parents contest for the rights and responsibilities of parenthood. It is axiomatic that children's interests are doctrinally supreme when their parents litigate about them, but do civil procedure and settlement practices in these cases also put children first? The dissertation responds to this research query using quantitative and qualitative empirical methodology. It draws both on a statistical analysis of reported cases and on the author's interviews of family law professionals in Toronto and New York City. The empirical findings are contextualized in a review of the relevant doctrine and scholarship from the legal and mental health disciplines. The first two articles make positive and normative claims about custody and access litigation in developed common-law jurisdictions; the remaining three focus on the settlement-seeking procedures which family courts apply to these cases. The Conclusion to the Portfolio draws from the articles to argue that, while litigating the best interest of a child is not a contradiction in terms in every custody or access case, the contours of the existing system are more reflective of adult interests and resource constraints than they are of children's interests. A family court is necessarily a civil justice system in the common law tradition, and can therefore only ever be a weak and inefficient servant of children's interests. However, the Portfolio does call for a cost-neutral procedural reform in the shape of a "grand bargain" between judges and parents. If parents yield power to judges within the adjudicative courtroom, and if judges in turn yield power to parents within the settlement-seeking conference room, the system will be brought more in line with its noble aspiration to pursue the best interests of the children involved.

If custody and access disputes are a deck of cards, the trump suit is the best interests of the child. When separating parents litigate about how and with whom their child should live, findings about what’s best for the child are meant to sweep away the parents’ interests and rights-claims. This principle is uncontroversial, but applying it is difficult. What parenting arrangements are best for children, and how successful is the legal system in putting these arrangements in place?

“Whose Best Interests?” compares the law of custody and access disputes with the procedure used to resolve them, and argues that there is a fundamental contradiction between these two things. The former focuses on the interests of the children involved to the exclusion of all else. The latter, however, is essentially designed to protect the best interests of the adult parties to the dispute. The article concludes by considering two alternative reforms which might resolve this contradiction.

Research paper prepared for the Law Commission of Ontario.