IV. What others have done or are currently doing

During the past few years, a significant amount of work has been done to remedy deficiencies in family justice and improve access to justice in Ontario. The LCO is building on this knowledge and will continue conducting research about family justice initiatives in Ontario and elsewhere throughout the project. In bringing these initiatives to the attention of consultation participants, the LCO seeks to highlight connections between its project and current or past projects conducted by other organizations. It also invites input from those who have participated in these projects. Finally, it invites leaders of other projects that are not cited in this paper to communicate with the LCO to explore common points and avoid duplication.

In November 2008, the Attorney General of Ontario, the Honourable Chris Bentley, introduced amendments to the Family Law Act to address domestic violence, child support and pension reform and these were given Royal Assent in May 2009.[17] The Attorney has engaged in consultations about the family law system over the past year. He recently announced that legal aid funding would be increased by $150 million over four years and that part of this funding will be allocated to family law process and to legal clinics serving people in poverty. The Attorney has also indicated that the government would focus on the distribution of information and on expediting dispute resolution, among other initiatives in the family area.[18] As the LCO’s own project on family law process proceeds, we will take into account developments arising from the Minister’s initiatives and welcome contributing to them, should the opportunity arise.

One of the most important reports produced in the area of family justice process in the past few years is the report prepared by Alfred A. Mamo, Peter G. Jaffe, and Debbie G. Chiodo.[19] Although focused on courts and interviews with workers, as opposed to the LCO project that will put specific emphasis on users, this report contains relevant information for the LCO project. The LCO project builds on many of the recommendations found in the Mamo, Jaffe and Chiodo Report such as ensuring the Family Law Information Centre (FLIC) be the main entry point into the family court system; realizing the full potential of mediation services; adapting to the reality of self-represented litigants; handling domestic violence and high conflict cases differently from other cases; sharing promising practices across the province and conducting a systematic and comprehensive review of the Ontario family justice delivery system.[20]

Embracing the Mamo, Jaffe and Chiodo Report’s recommendations, the Ontario Bar Association Family Law Section, the ADR Institute of Ontario and the Ontario Association for Family Mediation made a proposal to the Honourable Chris Bentley, Attorney General of Ontario, this year, for concrete implementation of these recommendations.[21] This group’s vision is that family courts should be the default option and not the entry point into the family justice system, except in cases of emergency such as domestic violence and urgent child and spousal support cases.[22] This proposal also emphasizes that legal information, referral and intake triage systems, as well as less adversity and more collaboration within the justice system, are key elements to improve the family justice process. The LCO project will explore similar issues. However, it will explore a broader range of issues, including for example, challenges that arise at the moment of family formation in addition to problems related to family breakdown, and entry points, both formal and informal. The LCO will also put greater emphasis on users’ experiences within the system.

Prior to the Mamo, Jaffe and Chiodo Report, Justice Coulter A. Osborne produced a more general civil court focused report.[23] Some recommendations found in the Osborne Report, especially about unrepresented litigants, the importance of civility in the legal profession and the use of technology in the justice system, apply to the LCO project. Although the report does not focus specifically on family justice, when it comes to legal service delivery there are common grounds between civil and family justice.

The report prepare by Michael Trebilcock about Legal Aid Ontario is another important report in terms of access to justice. [24] In relation to family law, the Report pointed out that “[m]any submissions expressed particular concerns over the very restrictive access to legal aid assistance in family law matters.”[25] It also revealed that many Ontario organizations are interested in service integration and multi-disciplinary clinics providing a single entry point for users.[26] They considered this type of multi-facetted service an important component of successful early intervention.[27] These observations are important for the LCO project. The LCO will continue exploring how Legal Aid Ontario can become a more effective entry point in the justice system.

Emerging from recommendations from the Osborne Report, the current Ontario Civil Legal Needs Project lead by Honourable R. Roy McMurtry, is another initiative that seeks to address similar concerns as the LCO project.[28] This project seeks to provide a legal need assessment of low and middle-income users of the Civil Justice System.[29] The Law Society of Upper Canada, Pro Bono Law Ontario, and Legal Aid Ontario have initiated this project to provide “a comprehensive, empirically based study of unmet legal needs in Ontario”.[30] The research is still in progress. It involves an extensive telephone survey of civil system users, focus group interviews with “front-line legal and social service providers”, and a mapping of existing services that enhance access to justice.[31] With an expected release date of early 2010, the final report will seek to establish a “roadmap to help stakeholders in the legal service delivery system establish priorities, allot existing resources effectively and identify opportunities for enhanced collaboration and improvement”.[32] In addition, this project’s definition of legal needs is very close to the LCO approach to family challenges and problems. They are defined as problems that are difficult to resolve.[33] Moreover, the project acknowledges on the one hand that “not all problems with a legal dimension necessarily create legal needs” and on the other hand that there is a connection between legal and social needs.[34] The timing of this Project Report’s release will allow the LCO to draw from it in examining more specifically the needs of family justice system users. The LCO work is likely to be complementary to the Ontario Civil Needs’ Project as it will analyze in greater detail one category of civil legal needs, relating to the family.

In line with the project of assessing needs across the province, Karen Cohl and George Thomson’s report Connecting Across Language and Distance: Linguistic and Rural Access to Legal Information and Services explores ways to increase access to justice across language and geographical barriers.[35] Not surprisingly, most findings about accessibility found in this Report apply to the LCO project. These findings include the fact that vulnerable persons need legal services more than self-help; that family and child protection are priority areas of the law; that a system, as opposed to a single entity, with multiple access points needs to be created; that community organizations should play an important role in that system; and that a commitment to collaboration is necessary to improve access to justice.[36] Some of these ideas have come back in many reports and the LCO hopes to design best practices that will help implement them.

Although the LCO explores similar access to justice issues as did the Linguistic and Rural Access Project, its project is different in that it focuses more narrowly on family issues. The linguistic and rural access project also did not explore Aboriginal peoples’ needs[37], suggesting that a separate project addressing their needs should be undertaken, which is something that the LCO hopes to do, even though it agrees that Aboriginal peoples’ issues are complex and may require special study. The Linguistic and Rural Access Project Report pointed out that although there is a legal requirement to offer services in French in Ontario in specific areas, francophone communities still faced challenges in accessing legal information and services.[38] The LCO will consult with francophone communities to consider how access to family justice services in French can be improved. In short, the LCO decided to leave the project open for participation from various groups in Ontario, including Aboriginal and French speaking groups. The LCO recognizes that particular communities have particular needs. Moreover, it recognizes that there is a great diversity within communities across the province. However, it will consider submissions from all groups and apply an intersectional analysis to better understand their needs.

Another example of recent and related work in the province is Luke’s Place report on the needs of Abused Women Unrepresented in the Family Law System.[39] Luke’s Place is a centre in Oshawa that “provides professional and peer support services to women and their children free of charge in a comfortable, accessible and confidential environment.”[40] In collaboration with The Denise House, an emergency shelter for abused women and their children, Luke’s Place conducted focus groups with and circulated a questionnaire to women survivors of violence who were unrepresented in family court as well as community workers, legal support workers, lawyers and judges.[41] This is an interesting study for the LCO as it focuses on a particular user group included in the LCO project.

Perhaps even more than the previously mentioned projects, this study made a particular effort at focusing on users, in this case women, and making their voices heard in the report through quotes from interviews. This project’s approach to users and recommendations are in line with the LCO family justice project. It recommends, for example, developing a triage system to handle emergencies on a pro bono basis or with legal aid support; removing barriers that prevent women on legal aid certificates from retaining a lawyer they saw at a Family Law Information Centre (FLIC) or as duty counsel; developing an information sharing/communication system between family and criminal courts; developing a screening process to fast-track cases involving woman abuse and to address the issue of legal bullying; increasing the scope of FLIC services (separate waiting room for abused women, free child care, free photocopying, legal aid office in courthouse, space for community supports and services); and exploring the option of providing legal services while women access other types of services (shelter, immigration and mental health services for example).[42] These are all possibilities that the LCO will take into consideration in its own research. Like some of the initiatives mentioned above, this Report also highlights the importance of domestic violence issues within the family justice process and the fact that these issues need to be identified early in the process, dealt with rapidly and in a different manner than other cases, and responded to through a variety of services and not only family legal services.

Also related to domestic violence, the Ontario Court of Justice Criminal-Family Intersection Working Group is currently discussing the possibility of having integrated domestic violence courts (IDVC) in Ontario.[43] Participants in this group include judges, lawyers, a regional Senior Justice of the Peace, a Victim/Witness Support Assistance representative and police officers. The LCO attended one of this group’s meetings in June 2009 and will follow these discussions with great interest as IDVCs provide an example of integrated service delivery and coordination beyond specific areas of the law (family, criminal and possibly immigration law) to better respond to needs of specific user groups, i.e. victims and perpetrators of domestic violence.

In addition to these initiatives, a significant number of public legal education materials have been produced in Ontario. Existing public legal education materials include: Community Legal Education Ontario’s (CLEO) online family law publications,[44] CLEO’s six languages project,[45] as well as the Ontario Ministry of the Attorney General website, which contains public legal information about Ontario law including family law resources.[46] Other initiatives focusing on Ontario women’s need for public legal education include: Family Law Education for Women (FLEW), which targets various audiences in terms of language and culture;[47] the Ontario Women’s Justice Network (OWJN), which also includes information about family law[48] and violence against women;[49] and the Canadian Council for Muslim Women’s (CCMW) comparative brochures about Canadian and Muslim family law.[50] Justice Harvey Brownstone also recently published a book, Tug of War: A Judge’s Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court,[51] which seeks to help people understand the family justice process. In addition to these materials, Ontarians have access to the federal government website, which provides information about various topics including family violence for example.[52] As the next section will explain, the better circulation of information about the family justice process is one of the possible solutions to improve the system. It is therefore important to be aware of the materials that are already available for distribution.

Interesting work has also been done in other jurisdictions. The LCO is only at the initial stage of conducting comparative research both nationally and internationally. However, an example worth considering in relation to family justice is the British Columbia Family Justice Reform Working Group, which was created by the BC Justice Review Task Force, to facilitate “ongoing collaboration between government, the judiciary and lawyers, working together to help make the justice system more responsive, accessible and cost-effective”.[53] There are interesting examples of innovative service delivery models in the United States, including one-stop-shopping family courts with full-time therapists on site[54] and a marriage license fee reduction upon completion of a premarital preparation course.[55] The Australia-based study “Working on their Relationships: a study of inter-professional practices in a changing family law system” is another example that provides helpful insight into the necessary elements to foster true and effective interdisciplinary collaboration in the area of family justice.[56] This is the kind of research that will supplement Ontario focused research and consultations. The LCO will continue inquiring into research and initiatives in other jurisdictions to find possible models that may apply to Ontario. Findings from comparative research will appear in the LCO final report during phase 3 of this project.