Endnotes

[1] Charter of the United Nations, 26 June 1945, Can TS 1945 No 7  16.

[2] The Family Reform Act, 1978, SO 1978, c2 abolished the marital unity of legal personality. According to the Preamble of the Family Law Act, “it is necessary to recognize the equal position of spouses as individuals within marriage and to recognize marriage as a form of partnership”: Family Law Act, R.S.O. 1990, c. F.3 Preamble and s 64 (1). See, for example, Judge Rosalie Silberman Abella, Family Law in Ontario, Changing Assumptions, (1981) 13 Ottawa Law Review 1, 8.

[3] The legal marriage between two partners of the same sex has been recognized by the Civil Marriage Act, SC 2005, c 33.

[4] Divorce Act, RSC 1985 (2nd Supp), c 3. The Divorce Act, 1968, c 24 (Can) introduced the concept of marriage breakdown as a ground for divorce. 

[5] Family Law Information Centres (or FLICs) are located at courthouses to provide information and other assistance. They are discussed in greater detail below. 

[6] See, for example, Ontario Work’s Directive 5.5: Family Support (July 2010), 2: “As a condition of eligibility applicants and recipients are with certain exceptions, required to make reasonable efforts to pursue child or spousal support to which he or she, or a dependent, may be entitled.” Online: http://www.mcss.gov.on.ca/documents/en/mcss/social/directives/ow/0505.pdf.

[7] See, for example, Ontario Disability Support Program’s policy: “The Director must be satisfied that a person is taking action, where appropriate, to obtain support payments.” Online: http://www.mcss.gov.on.ca/en/mcss/programs/social/directives/directives/ODSPDirectives/income_support/5_15_ODSP_ISDirectives.aspx.

[8] See, for example, the website of Passport Canada, In the case of custody, separation or divorce. Online: http://www.ppt.gc.ca/cdn/16-.aspx?lang=eng.

[9] See Art. 12 of the Convention on the Rights of the Child (Can TS 1992, No 3), which gives the child capable of forming his or her own views the right to express these views in a legal proceeding.

[10] Law Commission of Ontario, Research Priorities Report (Sossin Report). (April 2007). Online: http://www.lco-cdo.org/themes/lcotheme/SossinResearchReport.pdf. Professor Sossin (now Dean of Osgoode Hall Law School) was asked by the LCO Board of Governors to recommend potential projects for the new Law Commission of Ontario.

[11] Law Commission of Ontario, Division of Pensions Upon Marriage Breakdown Final Report. Online: http://www.lco-cdo.org/en/pensions-final-report.

[12] Law Commission of Ontario, “LCO Sees Recommendations Enacted”. Online: http://www.lco-cdo.org/content/lco-sees-recommendations-enacted. See Ontario, Legislative Assembly, Official Report of Debates (Hansard), 39th Parl., 1st Sess, No 111, 19 February 2009, 0920 (Hon Christopher Bentley). 

[13] Law Commission of Ontario, Family Law [Project] Options Consultation Paper (January 2009). Online: http://www.lco-cdo.org/en/family-law-options-consultation-paper.

[14] Law Commission of Ontario, Best Practices at Family Justice Entry Points: Needs of Users and Response of Workers in the Justice System. (September 2009) Online: http://www.lco-cdo.org/family-law/Family%20Law%20Process%20Consultation%20Paper%20-%20September%202009.pdf.

[15] Law Commission of Ontario, Voices From a Broken Family Justice System: Sharing Consultation Results, [Voices From a Broken Family Justice System] (September 2010). Online: http://www.lco-cdo.org/en/family-law-process-consultation-results.

[16] Brenda Jacobs and Lesley Jacobs, Multidisciplinary Paths to Family Justice, Professional Challenges and Promise Practices (June 2010), research paper commissioned by the LCO.  Online: http://www.lco-cdo.org/family-law-process-call-for-papers-jacobs.pdf  and Noel Semple, Cost-Benefit Analysis of Family-Service Delivery: Disease, Prevention and Treatment (June 2010), research paper commissioned by the LCO. Online: http://www.lco-cdo.org/family-law-process-call-for-papers-semple.pdf.

[17] Alfred A. Mamo, Peter G. Jaffe, Debbie G. Chiodo, Recapturing and Renewing the Vision of the Family Court (2007). (The Mamo Report) Online: http://www.crvawc.ca/documents/Family%20Court%20Study%202007.pdf.

[18] Barbara Landau, Tom Dart, Heather Schwartz, Joyce Young, Creating a Family Law Process That Works: Final Report and Recommendations from the Home Court Advantage Summit (December 12, 2009). Online: http://www.oba.org/En/publicaffairs_en/PDF/Interim_Report_Home_Court_Advantage_FINAL_12dec09.pdf

[19] Ontario Superior Court of Justice, Family Strategic Plan. Online: http://www.ontariocourts.on.ca/scj/en/famct/familylawstrategicplan.htm.

[20]Ontario Court of Justice, Biennual Report 2006-2007. Online:   http://www.ontariocourts.on.ca/ocj/en/reports/annualreport/06-07.pdf.

[21] The Middle Income Access to Justice Initiative. Online:  http://www.law.utoronto.ca/visitors_content.asp?itemPath=5/5/0/0/0&contentId=2113.

[22] Law Commission of Ontario, Towards a More Efficient and Responsive Family Law System: Interim Report. Online: http://www.lco-cdo.org/en/family-law-reform-interim-report.

[23] Human Rights Code, RSO 2009, c 33, Sch 2, s 35.

[24] Canadian Charter of Rights  and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 7.

[25] Statistics Canada, Rural and Urban population changes since 1851 for Ontario. Online: http://www40.statcan.ca/l01/cst01/demo62g-eng.htm.

[26] Statistics Canada, 2006 Community Profiles, 2006 Census Statistics. Canada Catalogue no. 92-591-XWE (Ottawa, March 13, 2007). Online: http://www12.statcan.ca/english/census06/data/profiles/community/index.cfm?Lang=E.

[27] Statistics Canada, 2006 Community Profiles. Online:  http://www12.statcan.ca/census-recensement/2006/dp-pd/prof/92-591/details/page.cfm?Lang=E&Geo1=CMA&Code1=595&Geo2=PR&Code2=35&Data=Count&SearchText=Thunder Bay&SearchType=Begins&SearchPR=01&B1=All&&GeoLevel=PR&GeoCode=535.

[28] Statistics Canada, 2006 Community Profiles, 2006 Census Statistics. Online: http://www12.statcan.ca/census-recensement/2006/dp-pd/prof/92-591/details/page.cfm?Lang=E&Geo1=CMA&Code1=535&Geo2=PR&Code2=35&Data=Count&SearchText=Toronto&SearchType=Begins&SearchPR=01&B1=All&GeoLevel=PR&GeoCode=535

[29] Some of these issues are discussed in the Interim Report in the LCO’s project on developing a framework for the law as it affects older adults: Law Commission of Ontario, The Law As It Affects Older Adults: Interim Report (June 2011). Online:  http://www.lco-cdo.org/en/older-adults-interim-report.

[30] Statistics Canada, Portrait of Seniors in Canada, Catalogue No. 98-519 XIE at 12. Online: http://www.statcan.gc.ca/pub/89-519-x/89-519-x2006001-eng.pdf.

[31]  Statistics Canada, Report on the Demographic Situation in Canada: 2005 and 2006 Edition (Ottawa: Statistics Canada, 2008), Catalogue no. 91-209-X. Online: http://www.statcan.ca/english/freepub/91-209-XIE/91-209-XIE2004000.pdf.

[32]  Tina Chui, Kelly Tran and Hélène Maheux, Statistics Canada, 2006 Census: Immigration in Canada: A Portrait of the Foreign-born Population, 2006 Census: Findings. Online: http://www12.statcan.ca/census-recensement/2006/as-sa/97-557/index-eng.cfm.

[33] Anne Milan, Migration: International 2009, Statistics Canada, (July 2011), 4 and 5. Online: http://www.statcan.gc.ca/pub/91-209-x/2011001/article/11526-eng.pdf.

[34]Statistics Canada, Population by religion, by province and territory (2001 Census) (Quebec, Ontario, Manitoba, Saskatchewan). Online: http://www40.statcan.gc.ca/l01/cst01/demo30b-eng.htm.

[35] Statistics Canada, Percentage of Aboriginal people in the population, Canada, provinces and territories,2006. (2006 Census). Online: http://www12.statcan.ca/census-recensement/2006/as-sa/97-558/figures/c1-eng.cfm.

[36]  Statistics Canada,  2006 Census: Aboriginal Peoples in Canada in 2006: Inuit, Métis and First Nations, 2006 Census. Online: http://www12.statcan.ca/census-recensement/2006/as-sa/97-558/p4-eng.cfm.  Also see, Statistics Canada, Living arrangements of Aboriginal and non-Aboriginal children aged 14 years and under, Canada, 2006. Online: http://www12.statcan.ca/census-recensement/2006/as-sa/97-558/table/t4-eng.cfm.

[37]  Statistics Canada, 2006 Census: Aboriginal Peoples in Canada in 2006. Online: http://www12.statcan.ca/census-recensement/2006/as-sa/97-558/p16-eng.cfm.

[38] Report of the Royal Commission on Aboriginal Peoples, vol 3,ch 2, para 1.2. Online www.ainc-inac.gc.ca/ap/rrc-eng.asp.

[39] Note 38, para 1.3.

[40] Note 38, para 1.3.

[41] Note 38, para 1.3.

[42]  Statistics Canada, Visible minorities groups percentage distribution, for Canada, provinces and territories. Online: http://www12.statcan.ca/census-recensement/2006/dp-pd/hlt/97-562/pages/page.cfm?Lang=E&Geo=PR&Code=01&Table=1&Data=Dist&StartRec=1&Sort=2&Display=Page. Only British Columbia has a higher percentage of members of “visible minority groups” (nearly 25%).

[43] Statistics Canada, Visible minorities characteristics [of Toronto], 2006 Community Profiles (2006 Census), Canada Catalogue no. 92-591-XWE (Ottawa, March 13, 2007). Online: http://www12.statcan.ca/english/census06/data/profiles/community/index.cfm?Lang=E.

[44] Statistics Canada, Population by home language, by province and territory (2006 Census) (Quebec, Ontario, Manitoba, Saskatchewan). Online: http://www40.statcan.ca/l01/cst01/demo61b-eng.htm

[45] Statistics Canada, Language used most often at work, 2006 Community Profiles (2006 Census), Canada Catalogue no. 92-591-XWE (Ottawa, March 13, 2007). Online: http://www12.statcan.ca/english/census06/data/profiles/community/index.cfm?Lang=E.

[46]  Legal recognition of support obligation at the end of common law same sex partnerships occurred in 1999 with M. v. H  [1999] 2 SCR 3.  Re K. and B., [1995] 125 DLR (4th) 653, [1995] Ont No 1425 (Prov. Ct.), recognized the right of same sex parents to adopt children.

[47] See Roger Sauvé , Family Life and Work Life: An Uneasy Balance, (Vanier Institute of the Family, January 2009), 10. Online: http://www.vifamily.ca/sites/default/files/worklife_0.pdf.

[48] OECD, The Future of the Family to 2030 (December 2008), 10 (The Future of the Family). Online: http://www.oecd.org/dataoecd/11/34/42551944.pdf.

[49] Meg Luxton,  Changing Families, New Understandings (The Vanier Institute of the Family, June 2011), 4. Online: http://www.vifamily.ca/media/node/876/attachments/06-29-2011_VIF_CFT_changingfamilies_ENG.pdf.

[50] Note 49, 19.

[51] Statistics Canada notes an increase in lone parent families headed by fathers: Statistics Canada, Family Portrait, continuity and change in Canadian families and households (2006 Census). (Family Portrait). Online: http://www12.statcan.ca/census-recensement/2006/as-sa/97-553/p2-eng.cfm.

[52] Sauvé, note 47, 10.

[53] Note 47, 15.

[54] The Future of the Family, note 48, 22 and 23.

[55] Juan Torres, Cities and Children, Planning to Grow Together (Vanier Institute of the Family, October 2009) 5. Online: http://www.vifamily.ca/media/node/217/attachments/children_cities.pdf.

[56] According to Statistics Canada, in 2006 there were 1.1 million married couples without children and there were 1.6 million married couples with children. In addition there were 192,000 common law couples without children and 144,000 common law couples with children. Statistics Canada, Families by Family Structure (2006). Online: http://www.statcan.gc.ca/pub/89-625-x/2007001/t/4054991-eng.htm.

[57] Luxton, note 49, 10.

[58] See Families by Family Structure, note 56.

[59] Note 56.

[60] Luxton, note 49, 11.

[61] Note 49, 6.

[62] Family Portrait, note 51.

[63] Anne-Marie Ambert, One Parent Families, Characteristics, Causes, Consequences and Issues (Vanier Institute of the Family, March 2006), 6. Online: http://www.vifamily.ca/media/node/396/attachments/oneparent_families.pdf.

[64] Family Portrait, note 51.

[65] Luxton, note 49, 5.

[66] The Future of the Family, note 48, 21.

[67] See, for example, Ursula Kilkelly, The Right to Respect for Private and Family Life, A Guide to the Implementation of Art. 8 of the European Convention on Human Rights, Human Rights Handbooks no. 1 (Directorate General of Human Rights, Council of Europe), 48-58. Online: http://www.echr.coe.int/NR/rdonlyres/77A6BD48-CD95-4CFF-BAB4-ECB974C5BD15/0/DG2ENHRHAND012003.pdf.

[68] For example, see Children’s Law Reform Act, RSO 1990, c C 12, s 24(2), on ties with children; Divorce Act RSC 1985, c 3, s 8(3), on the intention with respect to separation; Family Law Act, note 2, s 1(1), on the intention of a parent to treat a child as a child of his or her family;  Child and Family Services Act, RSO 1990, c C11, s 1(3), on extended family.

[69] See, for example, Children’s Law Reform Act, note 68, ss 8(1), 10(1) and 20(1).

[70]  Luxton, note 49, 11.

[71] In 2009, 6% of Canadians who had a current or former partner or spouse reported being physically or sexually victimized in the 5 years preceding the survey conducted by Statistics Canada: Family violence in Canada: a statistical profile, 11, catalogue no. 85-224-X. (Family Violence in Canada). Online: http://www.statcan.gc.ca/pub/85-224-x/85-224-x2010000-eng.pdf.

[72] According to Statistics Canada, household income and education levels were found to have had little impact on experiencing spousal violence: Family violence in Canada, note 71. Similarly, people who identified as a visible minority were not found to be associated with increased levels of spousal violence. However, persons who self-identified as gay or lesbian were more than twice as likely as heterosexuals to report having experienced spousal violence. Aboriginal identity was another socio-demographic factor associated with spousal violence.

[73] Women were three times more likely to report that the violent incident had disrupted their lives: Family Violence in Canada, note 71, 14. Furthermore, women were also more likely to report multiple victimizations than men, at 57% and 40%, respectively: note 71.

[74] The link between domestic violence and child physical abuse is estimated to range between 30% to 66% of cases –  the UK Review of Child Protection Interim Report, 26, para 2.20. Online: http://www.education.gov.uk/munroreview/downloads/Munrointerimreport.pdf. The 2008 Canadian Incidence Study of Reported Child Abuse and Neglect noted that the most frequently noted concerns in substantiated maltreatment investigations (66,282 child investigations) were victims of domestic violence (46%), few social supports (39%), mental health issues (27%), alcohol abuse (21%) and drug or solvent abuse (17%): Public Health Agency of Canada, Canadian Incidence Study of Reported Child Abuse and Neglect – 2008: Major Findings (Ottawa, 2010). Online: http://www.phac-aspc.gc.ca/ncfv-cnivf/pdfs/nfnts-cis-2008-rprt-eng.pdf.

[75] In 2009, 17% of persons who had contact with an ex-spouse or ex-partner reported that they had been physically or sexually assaulted by their partner at least once during the five year period preceding the survey conducted by Statistics Canada: Family Violence in Canada, note 71, 9.

[76] Anne-Marie Ambert, Divorce, Causes and Consequences (Vanier Institute of the Family, November 2009), 3. Online: http://www.vifamily.ca/sites/default/files/divorce_facts_causes_consequences.pdf. See also Semple, note 16, 3.

[77] The annual number of divorces in Ontario is fairly stable. Between 2001 and 2005 this number increased from 26,516 to 28,805. The divorce rate in Ontario in 2004 was 35.5%. This included persons who had remarried and divorced again. Ambert, note 76, 5 and 6.

[78] Ontario, Ministry of Finance, 2006 Census highlights. Online: http://www.fin.gov.on.ca/en/economy/demographics/census/cenhi06-5.html.

[79] Ab Currie, The Legal Problems of Everyday Life: The Nature, Extent and Consequences of Justiciable Problems Experienced by Canadians (Government of Canada, 2009), 33 and 34. Online: http://www.justice.gc.ca/eng/pi/rs/rep-rap/2007/rr07_la1-rr07_aj1/index.html.

[80] Ambert points out that research results on the consequences of a divorce are not always consistent and that studies do not cover sufficiently extended periods of time. Ambert, note 76, 24.

[81] UK Ministry of Justice, Family Justice Review Interim Report (March 2011), 151, para 5.37. Online: http://www.justice.gov.uk/downloads/publications/policy/moj/family-justice-review-interim-rep.pdf.

[82] Ambert, note 76,21.

[83] Note 76,21.

[84] Note 76, 21.

[85] Note 76, 21.

[86] Note 76, 22.

[87] Note 76, 22.

[88] Currie, note 79, 15.

[89] Note 79, 33 and 34.

[90] Semple, note 16, 19.

[91] Note 16, 19.

[92] Note 16, 35.

[93] Sauvé, note 47, 10.

[94] This was 227% compared to 170% for couple families with children: Matt Hurst, Debt and Family Type in Canada, (Statistics Canada, April 2011). Online: http://www.statcan.gc.ca/pub/11-008-x/2011001/article/11430-eng.pdf .

[95] Ambert, note 76, 18. The 2008 Ontario Study on the Experiences of Abused Women confirms the significant loss of income. The sample reported a family income of over $68,000 prior to separation and an average income of just over $30,000 after separation. In 43% of the cases women had to rely on social services and in 38% of the cases on friends and family. Molly Dragiewicz and Albert Dekeseredy, Study on the Experiences of Abused Women in the Family Courts in Eight Regions in Ontario  (Luke’s Place Support and Resource Centre for Women and Children, 2008), 20 (Experiences of Abused Women). Online: http://www.lukesplace.ca/pdf/Study-on-the-Experiences-of-Abused-Women.pdf.

[96] John Stapleton with Vass Bednar, Trading Places: Single Adults Replace Lone Parents as the New Face of Social Assistance in Canada (Mowatt Centre, 2011), 1. Online: http://www.mowateitaskforce.ca/sites/default/files/Stapleton.pdf

[97] Ambert, note 76, 20.

[98] See, for example, Experiences of Abused Women, note 95, 50.

[99] Note 95, 51.

[100] Ambert, note 76, 24. See also Currie, note 79, 16-25.

[101] See, for example, Human Resources and Skills Development Canada, Indicators of Well-being, Housing, Housing Needs. Online:  http://www4.hrsdc.gc.ca/d.4m.1.3n@-eng.jsp?did=7 and http://www4.hrsdc.gc.ca/.3ndic.1t.4r@-eng.jsp?iid=41#M_3. See also, The Future of the Family, note 48, 65.

[102] Experiences of Abused Women, note 95, 50 and 51.

[103] Tavia Grant, “State of the union: Cost cuts force Statscan to stop tracking marriage, divorce rates” (The Globe and Mail, July 21, 2011).

[104] For example, it will not be possible to compare whether the proportion of same-sex marriages will increase over time after the enactment of the federal Civil Marriage Act, note 3.

[105] For example, the Arbitration Act stipulates: “In a family arbitration, the arbitral tribunal shall apply the substantive law of Ontario, unless the parties expressly designate the substantive law of another Canadian jurisdiction, in which case that substantive law shall be applied.” Arbitration Act, 1991, SO 1991, c 17, s 32(4).

[106] Family Law Act, note 2, as amended by Bill 133, An Act to amend various Acts in relation to certain family law matters and to repeal the Domestic Violence Protection Act, 2000.

[107] Children’s Law Reform Act, note 68.

[108] See note 12.

[109] For a summary of the reforms from 2008 to 2010, see Ministry of the Attorney General, Family Law Reform, Backgrounder (December 9, 2010). Online: http://www.attorneygeneral.jus.gov.on.ca/english/news/2010/20101209-family-bg.asp. Also see Home Court Advantage, note 18, 9 and 46.

[110] The Attorney General gathered a group of experts to recommend ways to implement the pillars. The resulting changes to the system reflected some of those recommendations arising from the Home Court Advantage Conference, but not all. For a report on the conference, see Nick Bala and Phil Epstein, Family Law Process Report – Submissions for a Short Term Action Plan for the Attorney General of Ontario: Home Court Advantage: Creating a Family Law Process that Works (November 22 & 23, 2009). Online: http://www.oba.org/en/pdf/Home_Court_Advantage-Bala_Epstein_Summary.pdf

[111] Home Court Advantage, note 18, 11.

[112] During the consultations with the Law Commission of Ontario, an example was given of a Chinese woman who was assisted by a community organization but could not find a Chinese speaking lawyer: Voices From a Broken Family Justice System, note 15, 44.

[113] Ministry of the Attorney General, Ontario Forms Assistant. Online: https://formsassistant.ontariocourtforms.on.ca/Welcome.aspx?lang=en.

[114] Information was, for example, provided by the Government of Ontario (online: http://www.ontario.ca/en/communities/families/index.htm; Service Ontario (online: http://www.ontario.ca/en/services_for_residents/ONT04_020859 ); the Ministry of the Attorney General (online:  http://www.attorneygeneral.jus.gov.on.ca/english/justice-ont/ and http://www.attorneygeneral.jus.gov.on.ca/english/family/divorce/); Community Legal Education Ontario (online:  http://www.cleo.on.ca/ and http://yourlegalrights.on.ca/); Family Law Education for Women (online: http://www.onefamilylaw.ca/); Pro Bono Law Ontario (online: http://www.pblo.org/);  Law Help Ontario (online: http://www.lawhelpontario.org/); Legal Line (online: http://www.legalline.ca/); Legal Aid Ontario (online: http://legalaid.on.ca/en/ ); The Law Society of Upper Canada (online: http://www.lsuc.on.ca/ )and its Law Society’s Lawyer Referral Service. In addition, there was web-based information such as Service Canada’s information for families (online: http://www.servicecanada.gc.ca/eng/audiences/families/index.shtml ) and the Department of Justice’s Supporting Families Experiencing Separation and Divorce Initiative (online: http://www.justice.gc.ca/eng/pi/fcy-fea/).

[115] CLEO, Family Law. Online: http://www.cleonet.ca/topics/13.

[116] Government of Ontario. Online: http://www.ontario.ca/en/communities/families/index.htm

[117] In August 2008, the Attorney General launched Justice Ontario, an entry point for accessing legal resources and basic information on the most common justice-related topics in 173 languages. Online: http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/mag_annual/annual-rpt_2008_09.asp.

[118] Ministry of the Attorney General, note 113.

[119] Ministry of the Attorney General, What you should know about Family Law (1999; rev. March 2010). (The document is available in seven languages, in addition to English and French.) Online: http://www.attorneygeneral.jus.gov.on.ca/english/family/familyla.pdf.

[120]Department of Justice, Divorce Law: Questions and Answers (February 2006). Online: http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/pub/divorce/index.html.

[121] Department of Justice, Supporting Families. Online: http://www.justice.gc.ca/eng/pi/fcy-fea/. This website has a number of publications, as well as information.

[122] Canada Benefits, Divorce or Separation.  Online: www.canadabenefits.gc.ca.  The website provides access to relevant federal programs in each province.

[123] Legal Aid Ontario, Family Law Information Program (FLIP). Online: http://legalaid.on.ca/data/hidden/FLIP_en/player.html.

[124] FLIP, note 123.

[125] Note 123.

[126] CLEO. Online: http://www.cleo.on.ca/english/pub/onpub/subject/family.htm.

[127] FLEW. Online: http://www.onefamilylaw.ca/.

[128] FLEW, note 127.

[129] For example, What you should know about Family Law, note 119, 8 and 9.

[130] According to FLEW’s website; Family Law Education for Women evolved from advocacy efforts of the No Religious Arbitration Coalition (the “Coalition”). Online: http://www.onefamilylaw.ca/en/background/.

[131] LAO, note 123.

[132] See for example, Rule 2.04 of the Rules of Professional Conduct of the Law Society of Upper Canada (2011) . Online:  http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147486159; and the Supreme Court of Canada in R. v. Neil, [2002] 3 SCR 631.

[133] Legal Aid Ontario, 2008 Annual Report, 15. Online: http://www.legalaid.on.ca/en/publications/downloads/annualreport_2008.pdf.

[134] Law Society of Upper Canada, Lawyer Referral Service. Online:  http://www.lsuc.on.ca/faq.aspx?id=2147486372.

[135] Legal Aid Ontario, Duty Counsel Manual,  “Duty Counsel: Financial Eligibility Test” (January 1996, as rev. December 13, 1999), O Reg. 27/00, s 1 and O Reg. 293/07, s 1(2).

[136] Nicholas Bala, “Reforming Family Dispute Resolution in Ontario: Systemic Changes & Cultural Shifts”, M.J. Trebilcock, T. Duggan & L. Sossin, eds. (University of Toronto Press, forthcoming), 17. This paper was originally prepared for the Middle Income Access to Civil Justice Colloquium (University of Toronto, February 11, 2011).

[137] The Mamo Reoprt, note 17, 59.

[138] Voices From a Broken Family Justice System, note 15, 61.

[139] Note 15, 50.

[140] Note 15, 46-48.

[141] Jacobs and Jacobs, note 16, 29 and 30.

[142] Jacobs and Jacobs, note 16, 29 and 30.

[143] Voices From a Broken Family Justice System, note 15, 50 and 51.

[144] Ministry of the Attorney General, Family Law Information Centres (FLICs). Online: http://www.attorneygeneral.jus.gov.on.ca/english/family/infoctr.asp.

[145]  Ministry of the Attorney General, Mandatory Information Programs (MIPs). Online:  http://www.attorneygeneral.jus.gov.on.ca/english/family/parentinfo.asp.

[146] The Mamo Report, note 17, 55 and 56.

[147] See, for example, Ministry of the Attorney General, A Guide to Procedures in Family Court (June 2010). Online: http://www.attorneygeneral.jus.gov.on.ca/english/family/guides/fc/2010_family_court_guide_part_1_en.pdf.

[148] The Future of the Family, note 48, 61. In a similar vein, the Alberta Self-Represented Litigants Mapping Project noted that a lot of information offered by key organizations was, even for researchers with training related to information collection, “difficult to navigate and unravel, and incomplete regarding eligibility, access and other service details”: Canadian Forum on Civil Justice, Alberta Self-Represented Litigants Mapping Project (January 2007), 17 and 18. Online:http://cfcj-fcjc.org/docs/2007/mapping-en.pdf.

[149] Listening to Ontarians mentions the following sources:  the Ministry of the Attorney General, the Law Society of Upper Canada, the Law Society’s Lawyer Referral service, the LAO and PBLO’s Law Help Ontario: Listening to Ontarians, Report of the Ontario Civil Legal Needs Project, (The Ontario Civil Legal Needs Project Steering Committee, May 2010), 28 (Listening to Ontarians). Online: http://www.lsuc.on.ca/media/may3110_oclnreport_final.pdf.

[150] Voices From a Broken Family Justice System, note 15, 58.

[151] Semple, note 16, 61.

[152] Semple, note 16, 61.

[153] Semple, note 16, 63.

[154] Voices from a Broken Family Justice System, note 15, 20.

[155] Note 15, 62.

[156] Legal Aid Services Act, 1998, SO 1998, c 26.

[157] Legal Aid Ontario, Getting Legal Help: Certificate Services. Online: http://www.legalaid.on.ca/en/getting/certificateservices.asp.

[158] Legal Aid Ontario, Are you trying to get spousal support? Online: http://www.legalaid.on.ca/en/getting/type_family.asp.

[159] Listening to Ontarians, note 149, 18.

[160] Michael Trebilcock, Report of the Legal Aid Review (Ministry of the Attorney General, 2008), iii. Online: http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/trebilcock/legal_aid_report_2008_EN.pdf.

[161] Home Court Advantage, note 18, 57.

[162] Trebilcock, note 160, 129.

[163] In 2006-2007, the legal aid program used 4,119 lawyers, 2,109 of whom were family lawyers. This was a drop of 16% in legal aid lawyers compared to the year 1999-2000. However, in the area of family law there was a “staggering drop” of 29% in the number of family lawyers paid by Legal Aid Ontario compared to the year 1999-2000: Trebilcock, note 160, 73. Since Trebilcock’s legal aid review, the hourly compensation for lawyers has been increased and will be increased further.

[164] Coulter A. Osborne, Civil Justice Reform Report (Ministry of the Attorney General, November 2007), 44. Online: http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/cjrp/CJRP-Report_EN.pdf.

[165] Listening to Ontarians reports that 19% of Ontarians with a family legal problem did not seek legal assistance and 24% (i.e., 30% of the remaining 81%) had problems accessing legal assistance: Listening to Ontarians, note 149, 25.

[166] Langan points out, “The Anglo-Canadian justice system is adversarial in nature and assumes that both parties will be assisted by competent counsel. When one party is represented and the other is not, the balance of our system is disrupted.”Anne-Marie Langan, “Threatening the Balance of the Scales of Justice”, (2005), 30 Queen’s LJ, 825, para 3.

[167] For example, Mamo, Jaffe and Chiodo found that cases in which both parties were unrepresented there was a higher number of court appearances and more judges were involved: The Mamo Report, note 17, 131.

[168] Voices From a Broken Family Justice System, note 15, 22.

[169] Tracey Tyler, “How to reduce the high cost of divorce”, (The Toronto Star, August 1, 2011). Online: http://www.thestar.com/news/crime/article/1033280--how-to-reduce-the-high-cost-of-divorce-get-your-spouse-a-lawyer.

[170] Mamo, Jaffe and Chiodo write, “[T]he impact of the dramatic increase in self-representing meandering through the system is felt by court staff, and by judges, in particular….”. The Mamo Report, note 17, 106.

[171] For example, the Canadian Judicial Council released principles relating to unrepresented litigants in 2006, which provides some guidance in dealing with unrepresented litigants: Canadian Judicial Council, Statement of Principles on Self-Represented Litigants and Accused Persons (September 2006). Online: http://www.cjc-ccm.gc.ca/cmslib/general/news_pub_other_PrinciplesStatement_2006_en.pdf

[172] D.A. Rollie Thompson noted that court practice shows significant inconsistencies. D.A. Rollie Thompson, “No Lawyer: Institutional Coping with the Self-represented“, (2001) 19 CFLQ 455.

[173] Voices From a Broken Family Justice System, note 15, 41.

[174] The Mamo Report, note 17, 92.

[175] Mamo, Jaffe and Chiodo, for example, wrote, “The perception at each site of the staff, lawyers, and judges is that each location is under-resourced and that in successive years, staff have to do a lot more with less personnel and resources”. They also mentioned the “stress and vicarious trauma” that is associated with the client group. Note 17, 88 and 89.

[176] Tyler, note 169.

[177] Voices From a Broken Family Justice System, note 15, 27 and 28.

[178] Currie, note 79, 86.

[179] Note 79, at 88.

[180] A British Columbia report describes self help as: “All services in which a person who has the legal issue is taking responsibility for some or all the activities that are necessary to complete a legal transaction. These services can be seen as an alternative to or a modification of traditional full-service representation, where a lawyer completes all tasks in the transaction. Self-help encompasses provision of advice/information in-person in a variety of settings including clinics and courthouses; provision of information/education in person and/or via information and communication technology (ICT) that includes audio and visual media; and legal information/education in a variety of settings.” Gayla Reid and John Malcolmson, Voices from the Field, Needs Mapping Self-help Services in Rural and Remote Communities Final Report (Supreme Court [of BC] Self-Help Information Centre, May 2008), 14. Online: http://www.justiceeducation.ca/themes/framework/documents/Voices_from_the_Field_Final_August_2008.pdf.

[181] Mamo, Jaffe and Chiodo’s study showed that 68% of the applicants were women with an average age of 36 years and a median income of $22,000. In 32% of the cases men were the applicants. Their average age was 42 years and their median income was $32,000.  In the sample study 66% of all applicants were represented by a lawyer. Of the respondents 58% were self-represented and the remaining 42% were represented by counsel. Mamo, Jaffe and Chiodo concluded that “representation was relatively consistent across male and female applicants and respondents”:  The Mamo Report, note 17, 81. Langan’s sample study at the Kingston Family Court indicated that 63% of unrepresented litigants in the were men: note 166, 825. The Alberta Self-Represented Litigants Mapping Project concluded from its own research and other research that, “although people with annual incomes below $35,000 are far more likely to be SRLs, members of any social group may become SRLs once involved in a legal process.” Alberta Self-represented Litigants Mapping Project, note 148, 10, 17 and 18.

[182] Research in Nova Scotia and Alberta found that self-representing litigants generally have a higher education, but that service providers have the perception that self-represented litigants have below average literacy and comprehension levels.: Alberta Self-represented Litigants Mapping Project, note 148, 10. The Alberta Mapping Project itself did not conduct research on the actual profile of litigants, but based their conclusions on interviews with service providers.  It provided six general profiles of self-represented litigants.

[183] Middle Income Access to Civil Justice Initiative Steering Committee, Background Paper (University of Toronto Faculty of Law, c.2011), 19. Online: http://www.law.utoronto.ca/documents/conferences2/AccessToJustice_LiteratureReview.pdf.

[184] Anna Patton and Yetta Withrow, Self-Represented Litigants in Nova Scotia: Needs Assessment Study (Department of Jutsice, 2004), 20. Online: http://www.gov.ns.ca/just/srl/project.asp.

[185] Middle Income Access to Civil Justice Background Paper, note 183, 28.

[186] Langan, note 166, 825.

[187] Note 166, 861 and 862.

[188] See for example, Birnbaum and Bala’s survey among lawyers, as descibed by Tracey Tyler, note 169.   

[189] Experiences of Abused Women, note 95, 33.

[190] Note 95, 33.

[191] Tyler, note 169.

[192] Note 169.

[193] The UK Family Justice Review Interim Report, while addressing plans in the UK to limit access to legal aid, speaks of similar concerns “as to the ability of litigants in person to conduct their case effectively and as to the inevitable increased burden in terms of time and resources this will place on the court. We are also concerned that some parents will simply not pursue their dispute leading to some children losing contact with a parent.” Note 81, 155.

[194] R. v. Neil, note 132.                                                                                                                                 

[195] Middle Income Access to Civil Justice Background Paper, note 183, 75.

[196] Law Society of Upper Canada’s Rules of Professional Conduct, note 132.

[197] Note 132. The ease with which a lawyer can develop a solicitor-client relationship is indicated by the Law Society’s practice tips on avoiding “phantom clients”: The Law Society of Upper Canada, Practice Tips, “Establishing the Client Relationship, Avoiding Phantom Clients” (Ontario Reports, January 20, 2012), lxxii-lxxvi.

[198] Law Society of Upper Canada, Paralegals Code of Conduct. Online:   http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147486158.

[199] Law Society of Upper Canada, note 197.

[200] Samreen Beg & Lorne Sossin, “Should Legal Services be Unbundled?”, M.J. Trebilcock, T. Duggan & L. Sossin, eds. (University of Toronto Press, forthcoming), 19. This paper was originally prepared for the Middle Income Access to Civil Justice Colloquium (University of Toronto, February 11, 2011).

[201]  Beg & Sossin, note 200, 19.

[202] Family Lawyer Steven Bookman, quoted by Judy van Rhijn, “Unbundled Services, Lawyers welcome law society guidance” (Law Times, November 7, 2011) 5.

[203] Three major reasons for claims, regardless of full or limited representation, are the failure of communication between the client and the lawyer; the failure to be clear about the retainer; and the failure to investigate. These problems are even more likely to occur in limited representation: LawPro’s Submissions on Unbundled Legal Services (December 3, 2010), 8-10. Online: http://www.practicepro.ca/practice/pdf/LawPRO_Unbundling_Submission.pdf. For a summary of LawPro’s comments on unbundling, see Dan Pinnington, “LawPro concerned that unbundled legal services will mean more claims” (LawPro, December 6, 2010). Online: http://avoidaclaim.com/?p=873.

[204] LawPro’s Submissions on Unbundled Legal Services, note 203, 10.

[205] Law Society Act, RSO 1990, c L 8.

[206]  Paralegal Task Force, Paralegal Task Force Report (Law Society of Upper Canada, 2000), 128-130.

[207]  The Hon. Peter DeC. Cory, A Framework for Regulating Paralegal Practice in Ontario (Toronto: Ontario Ministry of the Attorney General, 2000), 61-62.

[208] Law Society of Upper Canada, By-laws under subsections 62 (0.1) and (1) of the Law Society Act, By-law 4, s 6. Online: http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147485805.

[209] Duty Counsel Offices are now the preferred model for providing duty counsel: Trebilcock, note 160, 37.

[210] Trebilcock, note 160, 37.

[211] Legal Aid Ontario, “Duty Counsel: Financial Eligibility Test,” note 135.

[212] Legal Aid Ontario’s Duty Counsel Manual (October 2002), 5. Online: http://www.legalaid.on.ca/en/info/downloads/DC_Manual_Civil_Chapter.pdf.

[213] Legal Aid Ontario, “Getting help in the courtroom”. Online: http://www.legalaid.on.ca/en/getting/dutycounsel_family.asp.

[214] Legal Aid Ontario’s Duty Counsel Manual, note 212.

[215] See note 212 at 9. We note that the shortage of family lawyers and the use of duty counsel and advice lawyers can impact low income users who seek full representation. Legal Aid Ontario’s Duty Counsel Manual, says: “Duty counsel or advice lawyers should not later act for a person they have assisted as duty counsel or advice lawyer because of the perceived impropriety of using the high visibility of the position of duty counsel to obtain clients. It should only occur in unusual circumstances and prior approval must be obtained from the area director, regardless of whether the retainer is private or by way of a legal aid certificate.”

[216] Ministry of the Attorney General, “Family Reform in Ontario”. Online: http://www.attorneygeneral.jus.gov.on.ca/english/news/2010/20101209-family-bg.asp.

[217] For example, the website of the Hincks-Dellcrest Centre says that individuals or families must contact the Centre’s intake centre directly for voluntary treatment services, and that referral sources can make inquiries about services.  Online: http://www.hincksdellcrest.org/Home/Services-to-Infants-Youth-and-Children/Voluntary-Treatment-Services.aspx.

[218] Ab Currie, A National Survey of the Civil Justice Problems of Low and Moderate Income Canadians, Incidence and Patterns, (Department of Justice, April 2005), 24, (Currie, A National Suvery). Online: http://cfcj-fcjc.org/docs/2006/currie-en.pdf.

[219]A UK report on child maintenance, for example, says, “Separating families will have a range of different needs and any offer of advice and support should take account of this and either provide, or signpost parents to, additional information and services. We believe that there is particularly scope for more fully integrating the emotional support people may need”. Strengthening Families, Promoting Parental Responsibility: the Future of Child Maintenance (Department of Work and Pensions, January 2011), 14. Online: http://www.dwp.gov.uk/docs/strengthening-families.pdf.

[220]Currie, A National Survey, note 218, 24.

[221] Voices From a Broken Family Justice System, note 15, 54 and 55.

[222] Jacobs and Jacobs describe the Durham DRIVEN network and the Family Violence Project of Waterloo Region: Jacobs and Jacobs, note 16, 44-46 and 31-33, respectively.

[223] The Hincks-Dellcrest Centre, Jacobs and Jacobs, note 16, 36-41.

[224] Lamp Community Health Centre, Jacobs and Jacobs, note 16, 33-35.

[225] North Renfrew Family Services, Jacobs and Jacobs, note 16, 41-44.

[226] Family Violence Project of Waterloo Region. Online: http://www.fvpwaterloo.ca/en/.

[227] Durham Region’s Intimate-relationship Violence Empowerment Network (DRIVEN). Online: http://www.durhamdriven.com/.

[228] Barbra Schlifer Commemorative Clinic. Online: http://www.schliferclinic.com/schliferClinic.html.

[229] Catholic Family Services Peel-Dufferin. Online: http://www.cfspd.com/Annual%20Report%202011.pdf  

[230] See note 228.

[231] Jacobs and Jacobs, note 16, 41.

[232] Jacobs and Jacobs, note 16, 13.

[233] Jacobs and Jacobs, note 16, 13 and 14.

[234] Jacobs and Jacobs, note 16, 66.

[235] Jacobs and Jacobs, note 16, 57.

[236] Jacobs and Jacobs, note 16, 58 and 59.

[237] Jacobs and Jacobs, note 16, 60.

[238] Jacobs and Jacobs, note 16, 52.

[239] Jacobs and Jacobs, note 16, 54 and 55.

[240] Jacobs and Jacobs, note 16, 56 with reference on p.50 to the Law Society of Upper Canada’s Submissions and Consultations for the Report of the Legal Aid Review 2008. See note 160.

[241] Law Society of Upper Canada, Rules of Professional Conduct, rule 6.10, note 132.

[242] Jacobs and Jacobs, note 16, 61.

[243] See, for example, the Supreme Court of Canada in R. v. Neil, note 132.

[244] Dutch Ministry for Youth and Family (Jeugd en Gezin), Handreiking, De Onderdelen van het Centrum voor Jeugd en Gezin (2008), 10 and 11. Online (in Dutch): http://dsp-groep.nl/getFile.cfm?file=15alvwscjg_De_onderdelen_van_het_CJG.pdf&dir=rapport.

[245] See, for example, 2009 Legal Aid Alberta Review citing Australian research. 2009 Legal Aid Alberta Review (Steering Committee, November 19 2009), 297. Online: http://www.legalaid.ab.ca/about/Documents/LAA%20Review-Final%20Report%20November%2020.pdf.

[246] Bala, Reforming Family Dispute Resolution, note 136, 17.

[247] Voices From a Broken Family Justice System, note 15, 23.

[248] Listening to Ontarians, note 149, 38.

[249] The Mamo Report, note 17, 43.

[250] The Association for Better Care of Children, as quoted in Voices From a Broken Family Justice System, note 15, 25.

[251] One lawyer who participated in the LCO’s consultations explained that she gives all options, including collaborative methods, to a client at the first meeting. This essential provision of information and advice, however, can take one hour and a half: Voices From a Broken Family Justice System, note 15, 25.

[252]  Mamo, Jaffe and Chiodo believe that “many lawyers lack the knowledge and experience, and therefore the confidence, to make recommendations to a client about an appropriate settlement without first having judicial input. This phenomenon increases litigation, prevents settlements from taking place early in the file, and leads to an avoidance of the mediation process.” The Mamo Report, note 17, 94.

[253] See note 250.

[254] Jane Walker, et al, The Family Advice and Information Service:  A Changing Role for Family Lawyers in England and Wales? Final Evaluation Report (Newcastle upon Tyne: Newcastle Centre for Family Studies, 2007), xxii. Online: http://www.legalservices.gov.uk/docs/fains_and_mediation/FAlnS_evaluation_report_2007_(2.56mb).pdf).

[255] Trebilcock, note 160, 108.

[256] Ministry of Child and Youth Services, Building our Future, Realizing the Vision of Ontario Best Start and Family Centres, 5. Online: http://www.children.gov.on.ca/htdocs/english/documents/topics/earlychildhood/bestStartUpdate2011-en.pdf.

[257] Final Report Legislative Assembly of Ontario, Select Committee on Mental Health and Addictions, Navigating the Journey to Wellness: the comprehensive mental health and addictions action plan for Ontarians (2nd Session, 39th Parliament). Online: http://www.ontla.on.ca/committee-proceedings/committee-reports/files_pdf/Select%20Report%20ENG.pdf.

[258] Karen Cohl and George Thomson, Connecting Across Language and Distance, Linguistic and Rural Access, (Law Foundation of Ontario, December 2008), 48. Online: http://www.lawfoundation.on.ca/pdf/linguistic_rural_report_dec2008_final.pdf.

[259] Family Justice Review Interim Report, note 81, 20 and 142.

[260] The Family Justice Review Interim Report refers to the UK Office for National Statistics Omnibus Survey Report No. 38 (Non-resident parental contact, 2007/8), a report on research using the National Statistics Omnibus Survey produced on behalf of the Ministry of Justice and the Department for Children, Schools and Families: note 81, 142. The Omnibus Survey Report can be found at http://www.statistics.gov.uk/downloads/theme_social/parentalcontact2007-08.pdf.

[261] Christine Skinner, et al, Child support policy: An international perspective (UK Department for Work and Pensions, Research Report No 405, 2007) at 104.

http://research.dwp.gov.uk/asd/asd5/rports2007-2008/rrep405.pdf.

[262] For example, Home Court Advantage, note 18, 27.

[263] Rachel Birnbaum and Nicholas Bala, “Toward the differentiation of “High Conflict” families: an analysis of social science research and Canadian case law”, (2010) 48 Family Court Review 403, 404 Online: http://onlinelibrary.wiley.com/doi/10.1111/j.1744-1617.2010.01319.x/pdf.

[264] Birnbaum and Bala, note 263, 406.

[265] Bala, “Reforming Family Dispute Resolution”, note 136, 8.

[266] Nicholas Bala, et al, “Alienated Children and Parental Separation, Legal responses in Canada’s Family Courts”. (2007), 33 Queen’s LJ 79, para 111.

[267] Bala, et al, note 266, para 111.

[268] Family lawyers participating in the LCO’s consultations said they felt that they need to maintain a professional distance, manage clients’ emotions, assess the levels of conflict while building a relationship of trust and not judging their clients’ behavior: Voices From a Broken Family Justice System, note 15, 23.

[269] Walker, et al, note 254.

[270] Legal Aid Ontario, FLIP, note 123.

[271] See note 123.

[272] Legal Aid Ontario’s Family Law Information Program (FLIP), for example, recommends speaking to a lawyer before choosing a dispute resolution method and to seek independent legal advice about the issues being mediated: note 123.

[273] Riverdale Mediation, Top Ten Myths of Family Mediation Series: Four. Online: http://www.riverdalemediation.com/2011/08/top-ten-myths-of-family-mediation-series-four/.

[274] The Mamo Report, note 17, 26.

[275] Note 17, 27.

[276] Bala, Reforming family dispute resolution in Ontario, note 136, 8.

[277] The Mamo Report, note 17, 82.

[278] Statistics Canada, note 71, 9.

[279] Family Law Rules, O. Reg 383/11, Subrule 14 (4).

[280] Bala, et al, note 266, para 114.

[281] From a Broken Family Justice System, note 15, 35.

[282] Note 15, 40.

[283] Jacobs and Jacobs describe The family Violence Project in Waterloo region, the LAMP Community Health Centre in Toronto, the Hincks-Dellcrest Centre in Toronto, the North Renfrew Family Services, and the Durham DRIVEN project: Jacobs and Jacobs, note 16. Another multi-disciplinary centre will open in the Peel Region: note 229.

[284] Airey vs. Ireland, [1979] 2 E.H.R.R. 305. Online: http://www.escr-net.org/caselaw/caselaw_show.htm?doc_id=400936

[285] Bala, et al, note 266, para 110.

[286] According to Bala, et al, “it is also a sad reality that many alienated parents lack the financial or emotional resources to protect their relationships through the court process”: note 266, para 119.

[287] Ministry of the Attorney General, “Stronger Support for Victims of Domestic Violence” (March 11, 2011). Online: http://www.attorneygeneral.jus.gov.on.ca/english/news/2011/20110311-dv-nr.asp.

[288] See, for example, Shelternet: online: http://www.shelternet.ca/en/index.cfm.

[289] The Men’s Project: online: http://www.themensproject.ca/index.php?ID=1&Lang=En.

[290]  Cohl and Thomson, note 258, 16.

[291] The Mamo Report, note 17, 82.

[292] Some users think there is a gender bias related to domestic violence issues. Women participating in the LCO’s family law project consultations felt that their credibility was more often questioned than men’s, while participating men thought they could more easily be falsely accused of domestic violence than women: Voices From a Broken Family Justice System, note 15, 42. Similar concerns were raised in the UK where it was said that a focus on domestic violence in legal aid programs might lead to false accusations: (Family Justice Review Interim Report, note 81, 154). Research cited in British Columbia’s review of family law indicates that deliberately false claims are few and “most false claims result from misunderstandings, not deliberate lying”: Ministry of the Attorney-General of BC, Family Relations Act Review, ch 9, 4. Online: http://www.ag.gov.bc.ca/legislation/pdf/Chapter9-FamilyViolence.pdf). 

[293] Legal Aid Ontario, Domestic Violence. Online: http://www.legalaid.on.ca/en/getting/type_domesticviolence.asp.

[294] Note 293.

[295] Ministry of the Attorney General, Family Court Support Worker Program. Online: http://www.attorneygeneral.jus.gov.on.ca/english/ovss/family_court_support_worker_program/default.asp.

[296] Ministry of the Attorney General, Family Court Support Worker Training Initiative. Online: http://www.attorneygeneral.jus.gov.on.ca/english/ovss/family_court_support_worker_program/guidelines_training.pdf.

[297] Ministry of the Attorney General, “Stronger Support for Victims of Domestic Violence” (March 11, 2011). Online: http://www.attorneygeneral.jus.gov.on.ca/english/news/2011/20110311-dv-nr.asp.

[298] Tamara Baluja, “A bumpy start for a new type of court”, (The Globe and Mail, August 2, 2011), A7.

[299] Note 298. The Court is based on the Integrated Domestic Violence Courts in New York State where disputants can be ordered to access these courts. By January 2011, the (over 45) courts had handled over 113,500 cases of 22,000 families since their inception in 2003: New York Sate Unified Court System, online: http://www.nycourts.gov/courts/problem_solving/idv/home.shtml. The courts have a link with community services and are a part of “problem-solving” courts, which also include Mental Health Courts, Drug Treatment Courts and Sex Offence Courts: New York State Problem Solving Courts, online: http://www.nycourts.gov/courts/problem_solving/PSC-FLYER4Fold.pdf.

[300] Ontario Court of Justice, Integrated Domestic Violence Court (IDV Court). Online: http://www.ontariocourts.on.ca/ocj/en/idvc/brochure.htm.

[301] IDV Court, note 300.

[302] The Mamo Report, note 17, 125.

[303] Arbitration Act, 1991, note 105.

[304] Family Law Act, 2006, SO 2006, c1, s 1(2).

[305] The family law arbitration process is explained on the Ministry of the Attorney General’s website: http://www.attorneygeneral.jus.gov.on.ca/english/family/arbitration/.

[306] Bala, “Reforming Family Dispute Resolution in Ontario”, note 136, 9 and 18.

[307] Austin Lawrence, et al, Effectiveness of using Mediation in Selected Civil Law Disputes, A Meta-Analysis for the Department of Justice, (Government of Canada, 2008), 25 and 26) This study concludes that the meta-analysis of the studies showed a positive impact of mediation on actual cost savings, but the perception of cost savings was not seen as positive, maybe because the costs of the mediation program were higher than expected. Online: http://www.justice.gc.ca/eng/pi/rs/rep-rap/2007/rr07_3/index.html.

[308] Family Mediation Centre. Online: http://www.mediationcentre.com/feescale.html.

[309] See note 308.

[310] According to the website of the Ministry of the Attorney General, “All mediators that provide services at the family courts have qualifications that meet the standards of the Ontario Association for Family Mediation for Accredited Family Mediators.” Online: http://www.attorneygeneral.jus.gov.on.ca/english/family/divorce/mediation/locate_mediator.asp.

[311]  Ontario Association for Family Mediation and ADR Institute of Ontario. Online: http://www.oafm.on.ca/ and http://www.adrontario.ca/, respectively.

[312] Family Mediation Canada. Online: http://www.fmc.ca/.

[313] The Mamo Report, note 17, 45.

[314] Voices From a Broken Family Justice System, note 15, 13 and 14.

[315] Peter Salem, “The Emergence of Triage in Family Court Services: the Beginning of the End for Mandatory Mediation?” (2009) 47 Family Court Review, 371.

[316] Salem, note 315, 377.

[317] Note 315, 380.

[318] For example, mediation connected to the California Courts can vary from court to court, but usually consists of a one hour session or sessions of two to three hours. Online: http://www.courts.ca.gov/1189.htm.

[319] Supporting Families to Support their Children proposes 15 hours of subsidized mediation: Barbara Landau, et al, Supporting Families to Support their Children (April 7, 2009), 13 (Supporting Families). Online: http://www.oba.org/En/homecourt/PDF/Tab%203%20-%20family_law_submission-ontario.pdf.

[320] Chief Justice Warren Winkler, “Access to Justice, Mediation: Panacea or Pariah?” (2007) 16(1) Canadian Arbitration and Mediation Journal, 5-9. Online:

http://www.ontariocourts.on.ca/coa/en/ps/speeches/access.htm.

[321] The Mamo Report, note 17, 127.

[322] Note 17, 46.

[323] These are: D. Ellis and N. Stuckless, Domestic Violence Evaluation (DOVE)(2006);  Michigan Supreme Court, Domestic Violence and Child Abuse/Neglect - Screening for Domestic Relations Mediation (2006); Linda Girdner, Conflict Assessment Protocol (CAP): Screening for spouse abuse in divorce mediation (1990);  Paul Charbonneau, Maine Court Dispute Resolution Service: Screening for Domestic Violence and Abuse in Domestic Relations Mediation: Screening and Assessment Guidelines (1997);  Peter Jaffe, Children of Domestic Violence: Special Challenges in Custody and Visitation Dispute Resolution (1996); Stephen K. Erickson and Marilyn S. McKnight, Mediating spousal abuse divorces: Ministry of the Attorney General, Training Required to be a Family Arbitrator. Online: http://www.attorneygeneral.jus.gov.on.ca/english/family/arbitration/training.asp.

[324] OAFM’s Policy on Abuse. Online: http://www.oafm.on.ca/mediators/abusepolicy.html.

[325] OAFM’s Policy on Abuse, note 324. Screening should continue throughout the mediation process. The issue of voluntariness is critical when it comes to creating a safe place for couples to meet and negotiate. Inquiries about abuse should be made during the separate orientation sessions, before mediation is offered as an option. Training must include Sensitivity to cultural, racial and ethnic differences that can impact the mediation process that may be relevant to domestic violence.

[326] According to the regulations under the Arbitration Act, 1991, the Attorney General can prescribe training requirements of arbitrators: O Reg 134/07, s 3. Online: http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_070134_e.htm.

[327] Note 326, s 2(4).

[328] See, for example, the Annual Report of the Superior Court of Justice, 12. Online: http://www.ontariocourts.on.ca/scj/en/reports/annualreport/07-08.pdf; and The Mamo Report, note 17, 12-17.

[329] The Attorney General, the Honourable John Gerritsen, has announced that the introduction of Unified Family Courts is the ultimate goal: Judy van Rijn, “Family Lawyers Hail Bentley’s Record”  (Law Times, November 7, 201), 9. Online: http://lawtimes.clbmedia.dgtlpub.com/2011/2011-11-07/home.php

[330] Court Services Division Annual Report 2009-2010, 31-33. Online: http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/courts_annual_09/Court_Services_Annual_Report_CHAP3_EN.pdf. The report also mentions that there were between almost 14,000 child protection proceedings in 2005 and almost 11,000 proceedings in 2009. There was a steady decrease in child protection proceedings. Changes to the Child and Family Services Act in 2006 may have resulted in less complex cases leaving the system and the more complex cases taking more time.

[331] Mary Bess Kelly, Family Court cases involving custody, access and support arrangements 2009/2010, Juristat, (March 29, 2011), 8. Online: http://www.statcan.gc.ca/pub/85-002-x/2011001/article/11423-eng.pdf.

[332] Ontario Court of Justice, Bi-Annual Report, 2006-2007. Online: http://www.ontariocourts.on.ca/ocj/en/reports/annualreport/06-07.pdf.

Another 30% of cases are related to the Child and Family Services Act (involving child protection, adoption and children with mental disorders). The trend that family courts mainly focus on children’s issues (custody, access and support) can be seen throughout Canada. See Kelly, note 331, 8.

[333] Listening to Ontarians, note 149, 57.

[334] Kelly, note 331, 15.

[335] Note 331, 9.

[336] Note 331, 9.

[337] Note 331, 10.

[338] Mamo, Jaffe and Chiodo write that in 126 of 437 files the median number of weeks to process a case was 55 weeks and three or more judges had been involved. The Mamo Report, note 17, 82.

[339] Evaluation of the Ottawa Family Case manager Pilot project (Ottawa Report), Online: http://www.ccla-abcc.ca/uploadedFiles/Year_Two_Evaluation.pdf.

[340] Masters must have been a member of the bar of a province or territory for 10 years: O Reg. 535/96, Case Management Masters — Qualifications.

[341] See Ottawa Report, note 339, 8-9.

[342] Family Law Rules, O Reg 383/11, s 17(8).

[343] Superior Court of Justice, Family Law Strategic Plan. Online: http://www.ontariocourts.on.ca/scj/en/famct/familylawstrategicplan.htm.

[344] See note 343.

[345]See note 343.

[346] Michael McKierman, “Family law reforms fall short, Winkler says” (Law Times, June 27, 2011), 5. Online: http://lawtimes.clbmedia.dgtlpub.com/2011/2011-06-27/home.php.

[347] Bala, “Reforming Family Dispute Resolution”, note 136, 43.

[348] Note 136, 31.

[349] Barbara Landau, Lorne Wolfson & Niki Landau, Family Mediation, Arbitration and Collaborative Practice Handbook, 5th ed. (Markham: LexisNexis Canada, 2009), 99-100.

[350] Gary L. Voegele, Linda K. Wray & Ronald D. Ousky, “Collaborative Family Law: A Useful Tool for the Family Law Practitioner to Promote Better Outcomes” (2007) 33 Wm. Mitchell L. Rev. 971, 976-977; Pauline H. Tesler, “Collaborative Family Law” (2004) 4 Pepperdine Dispute Resolution Law Journal 317, 319.

[351] Tesler, note 350, 323.

[352] Wanda Wiegers & Michaela Keet, “Collaborative Family Law and Gender Inequalities: Balancing Risks and Opportunities” (2008) 46 Osgoode Hall L.J. 733, 746.

[353] Family Justice Review Interim Report, note 81, 155.

[354] With respect to immigrant women, see, for example, Cohl and Thomson, note 258, 16.

[355] Currie, note 79, 23.

[356] See, for example, Public Health Agency of Canada, Canadian Incidence Study of reported Child Abuse and Neglect – 2008: Major Findings (Ottawa: Public Health Agency of Canada, 2010), 39. Online: http://www.phac-aspc.gc.ca/ncfv-cnivf/pdfs/nfnts-cis-2008-rprt-eng.pdf.

[357] Child and Family Services Act, RSO 1990, c C.11, s 1.

[358] Note 357, s 1(2).

[359] See, for example, the website of the Court Worker Program in Sudbury. Online: http://www.nfcsudbury.org/Brochures/Lorena.pdf.

[360] Ministry of the Attorney General, Aboriginal Justice Strategy, Aboriginal Court Workers. Online: http://www.attorneygeneral.jus.gov.on.ca/english/aboriginal_justice_strategy/increase_access.asp

[361] Organizations that provide assistance in relation to legal matters for Aboriginal people include Aboriginal Legal Services in Toronto (online: http://www.aboriginallegal.ca/); Nishnawbe Aski Legal Services  (online: http://www.nanlegal.on.ca/ ); and the Keewaytinok Native Legal Services, (online: http://keew.org).

[362] According to a 2007 study, over 16,000 Ontarians spoke an Aboriginal language (Ojibway, Oji-Cree and Cree) at home with about 6,000 speaking only that language: Fosburys Experts-Conseil, Community Interpreting in Canada (Industry Canada, 2007), 14. Online: http://www.imiaweb.org/uploads/pages/471.pdf.

[363] The Indian Act, RSC, 1985, c I-5, does not provide for the division of relationship property. Section 88 of the Indian Act provides that provincial laws of general application apply to Indians living in the province except to the extent the law conflicts with or is covered by the Indian Act, the First Nations Fiscal and Statistical Management Act, or with any order, rule, regulation or law of a band made under those Acts. However, the Supreme Court of Canada has held that section 88 and therefore provincial statutes relating to marital property do not apply to reserve lands. See, for example, Derrickson v. Derrickson, [1986] 1 S.C.R. 285; Paul v. Paul, [1986] 1 S.C.R. 306. To amend this situation Bill C-8, Family Homes on Reserves and Matrimonial Interests or Rights Act, was introduced into Parliament in 2009, but did not pass into law. Online: http://www.parl.gc.ca/LegisInfo/BillDetails.aspx?Language=E&Mode=1&billId=3635116.

[364] Ashley Smith, “Bill C-47: The Answer or the Continuance of Inequity for the First Nations of Canada?” (2010) 29 CFLQ 47.

[365] This is evident in the Child and Family Services Act, which relates to child welfare: note 357. Under this Act, “Indian” has the same meaning as under the Indian Act. A native person is defined as a person of a native community but is not a member of a band. A community may be designated a native community by the Minister under section 209 of the Child and Family Services Act. This has the effect of excluding aboriginal children who are not part of a community that is a designated native community.

[366] Listening to Ontarians, note 149, 25.

[367] 211 Ontario. Online: http://www.211ontario.ca/#.

[368] The Law Society of Upper Canada, Lawyer Referral Service. Online: http://www.lsuc.on.ca/faq.aspx?id=1146.

[369] Tyler, note 169.

[370] The Canadian Judicial Council has released guidelines for judges in relation to unrepresented litigants: note 171.

[371] Cohl and Thomson, note 258, 44.

[372] See for example the Middle Income Access to Civil Justice Background Paper, note 183, 12 on “expressed need or demand”, “felt need or demand” and “normative need or demand”.

[373] For example, article 6 (1) of the European Convention on Human Rights stipulates the right to a decision (“fair and public hearing”)  within a reasonable time in civil law cases: Convention for the Protection of Human Rights an Fundamental Freedoms, 4 November 1950, 213 UNTS 221, 223

[374] Home Court Advantage, note 18, 45.

[375] Note 18, 47.

[376] In the Case of Airey vs. Ireland, the European Court of Human Rights established a right to legal counsel under art. 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms: note 284. The following factors played a role: Airey’s level of education, the complexity of the Irish divorce proceedings, Airey’s income situation, the high costs of the procedure, the situation of conflict and the significance of the matter. The Court held:  “What is more, marital disputes often entail an emotional involvement that is scarcely compatible with the degree of objectivity required by advocacy in court.” However, the Court added that legal aid schemes are not the only solution, but also, for example, a simplification of the procedure.

[377] John McCamus, Report of the Ontario Legal Aid Review 1996: a Blueprint for Publicly funded Legal Services (Ministry of the Attorney General, 1997), ch. 4. Online: http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/olar/.  UK Ministry of Justice, Reform of Legal Aid in England and Wales, the Government Response (June 2011), 11 and 12, para 6. Online: http://www.justice.gov.uk/downloads/consultations/legal-aid-reform-government-response.pdf. Also see 2009 Legal Aid Alberta Review (November 19 2009), 16. Online: http://www.legalaid.ab.ca/about/Documents/LAA%20Review-Final%20Report%20November%2020.pdf and Trebilcock, Legal Aid Review 2008, also citing the 1997 Legal Aid Review: note 160, 8.

[378] The Mamo Report, note 17, 81.

[379] Voices From a Broken Family Justice System, note 15, x.

[380] Listening to Ontarians, note 149.

[381] Kirk Makin, Divorce…the Canadian way (The Globe and Mail, March 26, 2011).

[382] Kirk Makin, A reformer’s program, (The Globe and Mail, March 26, 2011).

[383] These proposals include front-end prevention of legal problems, self-help services, public legal education and information (hotlines, websites, advice from non-lawyers and non-paralegals, paralegals), summary advice, duty counsel, full representation and holistic services. It will further look into cost-aspects, legal insurance plans, contingency fees (“no win, no fee”), class actions, pro bono services, funding for small and sole practitioners, services for people in remote and rural areas, services for cultural and linguistic issues, billing alternatives and unbundled legal services: Middle Income Access to Civil Justice Background Paper, note 183.

[384] Australian Government, Towards a National Blueprint for the Family Law System (Attorney General’s Department, February 2009), 9 and 10. Online: http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(084A3429FD57AC0744737F8EA134BACB)~FINAL+Conference+Paper+-+Towards+a+National+Blueprint+for+the+Family+Law+System.PDF/$file/FINAL+Conference+Paper+-+Towards+a+National+Blueprint+for+the+Family+Law+System.PDF.

[385] Voices From a Broken Family Justice System, note 15, 12.

[386] The Mamo Report, note 17, 114.

[387] Bala, “Reforming family dispute resolution in Ontario”, note 136, 9..

[388] Jamie Baxter and Albert Yoon, The Geography of Civil Legal Services in Ontario, Report of the Mapping Phase of the Ontario Civil Legal Aid Needs Project (The Ontario Civil Legal Need Project Steering Committee, November 2011), 69-71. Online: http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147486236

[389] Listening to Ontarians, note 149, 25.

[390] Note 149, 32.

[391] Middle Income Access to Civil Justice Background Paper, note 183.

[392] Note 183, 6.

[393] Law Society of Upper Canada, Rules of Professional Conduct, note 132.

[394] Family Lawyer Tom Dart, who was quoted by Judy van Rhijn, Unbundled Services, Lawyers welcome law society guidance (Law Times, November 7, 2011), 5. On the appropriateness of “unbundling” in family law, see Thompson, note 172, 470-472.

[395] See note 394.

[396] Beg & Sossin, note 200, 6.

[397] Langan, note 166, 851.

[398] Supporting Families, note 319, 14.

[399] Evaluations in Queensland, Australia found that in order to make effective use of self-help services, clients require a high level of literacy and comprehension, they need to want to help themselves and must have the confidence to do so. “When clients face multiple barriers (such as literacy and language issues, or mental health or intellectual disability issues) self-help materials are not suitable”: Reid and Malcolmson, note 180, 31 and 32.

[400] Judicial Council of California, Report of the Elkins Family Law Task Force (April 2010), 12. Online: http://www.courtinfo.ca.gov/jc/documents/reports/20100423itemj.pdf.

[401] See the Law Society of Upper Canada, Your Lawyer Bill – Too High? Online: http://www.lsuc.on.ca/with.aspx?id=640; PBLO, Law Help Ontario, How Do I Get a Lawyer’s Bill Reviewed? Online: http://www.lawhelpontario.org/search/item.221761

[402] Stanchieri Family Law. Online: http://www.stanchierifamilylaw.com/legal-fees.html. The website lists the cost of an initial consultation and retainer and hourly rates. It also states that the firm does not provide free legal services or legal aid, but provides links to appropriate resources.

[403] Law Society of Upper Canada, Rules of Professional Conduct, Rule 3.03, note 132.

[404] Baxter and Yoon, note 388, 69-71.

[405] Pro Bono Law Ontario, note 114.

[406] Justicenet. Online: http://www.justicenet.ca/who-qualifies/.

[407] Langan, note 166, 849.

[408] Trebilcock, note 160, 109-113.

[409] “Law Society Taking Steps to See Expanded Role for Paralegals.” (Benchers’ Bulletin, Summer 2011), 9. Online: http://www.lawsociety.bc.ca/docs/bulletin/BB_2011-02-summer.pdf.

[410] Langan, note 166, 852 and 853.

[411] Home Court Advantage, note 18, 57 and at 14.

[412] Trebilcock, note 160, 113.

[413] Home Court Advantage, note 18, 26.

[414] Office of the Auditor General of Ontario, 2011 Annual Report, 204. Online: http://www.auditor.on.ca/en/reports_en/en11/309en11.pdf.

[415] Recognition of the importance of providing services where this might not otherwise be possible is keeping with the tradition of the legal profession. See, for example, Law Society of Upper Canada, Rules of Professional Conduct, Commentary to Rule 2.08, which states, “It is in keeping with the best traditions of the legal profession…to reduce or to waive a fee where there is hardship or poverty or the client or prospective client would otherwise be deprived of adequate legal advice or representation.” Note 132.

[416] Legal Aid Ontario, Discretionary Increases. Online: http://www.legalaid.on.ca/en/info/discretionary.asp .

[417] Trebilcock, note 160, 96. Also Sujit Choudry, M.J. Trebilcock and J. Wilson, “Growing Legal Aid Ontario into the Midde Class: A Proposal for Legal Expenses Insurance”, M.J. Trebilcock, T. Duggan & L. Sossin, eds. (University of Toronto Press, forthcoming). This paper was originally prepared for the Middle Income Access to Civil Justice Colloquium (University of Toronto, February 11, 2011).

[418] For example, LEI has been available in France since the beginning of the 20th century, in Germany (where it is mandatory with auto insurance) from 1928 and in the United Kingdom since 1974. Research for this topic was completed by Cris Best, a student in the law reform course at Osgoode Hall Law School in Fall 2010: “An Analysis of Private Legal Expense Insurance to Improve Access to Justice for Ontario’s Middle-Income Individuals and Families” (on file with the Executive Director of the LCO). A main German insurance company (ARAG) provides insurance for divorces and support issues for legal fees up to 30,000 euro per case: ARAG. Online (in German): www.arag.de. The cost is significant for this option in service: the annual premium for LEI would increase for a family (salaried worker) from €177 to €397. In the Netherlands legal insurance, which is established in other areas of law, does not generally cover the court process in divorce cases, but it does cover one session of legal advice and, depending on the package, mediation. Online (in Dutch): www.juridischloket.nl. Also see, for example, DAS, online (in Dutch):  http://www.mijnrechtsbijstandverzekering.nl/rechtsbijstandverzekering.htm.

[419] In Quebec, it has been promoted by the Barreau du Québec, the legal regulator: Barreau du Québec, “L’Assurance juridique”. Online: http://www.assurancejuridique.ca/.

[420] CAW Legal Benefits Plan, Benefits Schedule. Online: http://www.cawlsp.com/BENEFIT%20SCHEDULE%202008.pdf.

[421] For a discussion of pre-paid legal plans in Ontario, see Oliver Bertin, “Lawyers see more work thanks for pre-paid legal plans,” (The Lawyers Weekly, February 4, 2005). Also see Luis Milan, “Legal Insurance” (The Lawyers Weekly, May 1, 2009).  

[422] The Access to Justice Committee prepared a background paper for Convocation in June 2002, recommending further research into prepaid legal plans. Online: http://www.lsuc.on.ca/media/convjune02_accjust.pdf.

[423] Helen Rhoades, et al, Enhancing inter-professional relationships in a changing family law systems Final Report (University of Melbourne, May 2008). Online: http://sydney.edu.au/law/about/staff/HilaryAstor/FamilyLaw_FinalReport_May08.pdf

[424]  Voices From a Broken Family Justice System, note 15, 24.

[425] Helen Rhoades, “Mandatory mediation of family disputes: reflections from Australia”, (June 2010) 32 Journal of Social Welfare & Family Law, 190 and 191. Following the completion of the LCO’s Interim Report, a book addressing the relationship between law and mediation in the Family Law system considered a number of issues to which we refer, including power relations and particularly gendered power relations that affect the process and the importance of legal advice. The authors find that these factors affect the decision to go to mediation and the process and outcome of the mediation. See Becky Batagol and Thea Brown. Bargaining in the Shadow of the Law: The Case of Family Mediation (Sidney Themis Press, 2011). Our thanks to Professor Mary Jane Mossman of Osgoode Hall Law School for alerting us to this book.

[426] By “the court system”, we mean the court itself, since mandatory information and mediation, among other processes, are part of the “court process” broadly defined.

[427] The OBA Family Law Section, the ADR Institute of Ontario & the OAFM noted a need for a family court system with specialized resources, consisting of specialized judges. Judges should be allowed to order a parenting coordinator (or Special Master”) to high conflict “revolving door” litigants to assist in the implementation of minor conflicts, such as parenting schedules. Unnecessary and abusive litigation should be discouraged by awarding costs. Supporting Families, note 319.

[428] Bala, et al, note 266, para 110

[429] Note 266, para 114.

[430] The capacity of the Office of the Children’s Lawyer may need to be increased. See for example Judy van Rhijn, Court’s Struggle with How to Hear Children’s Views (Law Times, February 7, 2011), 14.

[431] Cohl and Thomson, note 258.

[432] See, for example, the Ministry of the Attorney General, Our Commitment to Accessibility. (2011) Online: http://www.attorneygeneral.jus.gov.on.ca/english/about/commitment_to_accessibility_printable.pdf.

[433] Baxter and Yoon, note 388, 51.

[434] Note 388, 41.

[435] Note 388, 82 and 83.

[436] Note 388, 76.

[437] Cohl and Thomson, note 258, 40.

[438] Note 258, 38.

[439] Note 258, 39.

[440] Note 258, 34.

[441] Note 258, 35.

[442] Note 258, 33.

[443] Ministry of Children and Youth Services, Policy Directive CW 005-06, 2-3. Online:

http://www.familyservicesottawa.org/documents/adr_brochures/Policy%20Directive.pdf.

[444] Family Group Conferencing brings together “the family (including the child where appropriate), the child’s extended family and community, child protection workers, and services providers to develop a plan that addresses the protection concerns identified”. This is facilitated by a trained and impartial coordinator. Ministry of Children and Youth Services, note 443.

Ministry of Children and Youth Services, note 443, at 3.

[445] Note 443, 3.

[446] Note 443, 3.

[447] Note 443, 5.

[448] See the Centre for Family and Children in the Justice System. Online: http://www.lfcc.on.ca/adr-link/ADR-LINK_First_Nations.html.

[449] Bala, for example, writes that there is “a paucity of basic statistical information about family justice in Ontario”: “Reforming Family Dispute Resolution in Ontario”, note 136, 29.

[450] Chief Justice Warren K. Winkler, ”Family Law and Access to Justice: Time for Change”, 5th Annual Family Law Summit (June 17, 2011). Online: http://www.ontariocourts.on.ca/coa/en/ps/speeches/2011-Family-Law-Access-Justice.htm. Chief Justice Winkler’s focus is on mediation, however, while the LCO believes that other, admittedly more complex approaches, are required.

[451] André Picard, “Health-care system needs a front door” (The Globe and Mail, November 8, 2011).

[452] The College of Family Physicians of Canada (CFPC), Family Practice The Patient’s Medical Home, A vision for Canada (September 2011). Online: http://www.cfpc.ca/uploadedFiles/Resources/Resource_Items/PMH_A_Vision_for_Canada.pdf

[453] See note 452, 41.

[454] Legal Aid Ontario, Fact Sheet Duty Counsel Services. Online: http://www.legalaid.on.ca/en/about/downloads/factsheets/factsheet_dutycounsel.pdf.

[455] For a description, see Citizens Advice Bureau. Online: http://www.citizensadvice.org.uk

[456]Relationship Australia, Family Relationship Centres. Online: http://www.relationships.org.au/what-we-do/family-relationship-centres.

[457] On the UK, see The World Justice Project, International Rule of Law Index (2011), 22. Online: http://worldjusticeproject.org/sites/default/files/wjproli2011_0.pdf.

[458] On Australia, see note 457, 27.

[459] See note 384, 3 and 4.

[460] See, for example, Martin Gramatikov and Laura Klaming, Getting Divorce Online: Procedural and Outcome Justice in Online Divorced Mediation (Tilburg University TISCO Working Paper, 2011). Online: http://ssrn.com/abstract=1752903.

[461] The Mamo Report, note 17, 61

[462] Supporting Families, note 319, 7-9.

[463] The Mamo Report, note 17, 51.

[464] Department for Works and Pensions, Government’s response to the consultation on strengthening families, promoting parental responsibility: the future of child maintenance (July 2011), 20. Online: http://www.dwp.gov.uk/docs/strengthening-families-response.pdf .

[465] See note 464, 20 and 21.

[466] Dutch Ministry for Youth and Family (Jeugd en Gezin), Samenwerken voor de jeugd. Online (in Dutch): http://www.samenwerkenvoordejeugd.nl/.

[467] Centrum voor Jeugd en Gezin, Scheiding en de zorg voor de kinderen. Online: http://www.rijksoverheid.nl/documenten-en-publicaties/brochures/2010/06/29/scheiding-en-de-zorg-voor-de-kinderen-handreiking-voor-gemeenten.html.

[468] Ministry of Children and Youth Services, Building Our Best Future, Realizing the Vision of Ontario Best Start and Family Centres: An Update (2011), 1. Online: http://www.children.gov.on.ca/htdocs/english/documents/topics/earlychildhood/bestStartUpdate2011-en.pdf.

[469] Jacobs and Jacobs, note 16, 49. See also, note 468.

[470] See note 468.

[471] Jacobs and Jacobs, note 16, 48 and 49.

[472] Supporting Families, note 319, 7-9.

[473]Trebilcock, note 160, 108.

[474] See for example The Reform of Legal Aid in England and Wales, the Government Response, which at Annex D discusses the mandatory use of a Community Legal Advice Telephone Helpline: note 377

[475] On the Netherlands, see note 457.

[476] S.L. Peters, L. Combrink-Kuiters & M. Van Gammeren-Zoeteweij, Monitor gesubsidieerde rechtsbijstand (Raad voor Rechtsbijstand, 2009), 18. Online (in Dutch): http://www.rvr.org/binaries/rbv-library/onderzoeken/mgr/monitor-2009_interactief.pdf.

[477] The Monitor Gesubsidieerde Rechtsbijstand 2009 reported that in 2009 the Counters dealt with over 780,000 contact: note 476, 37-46. Fifteen percent of all questions were on family law. The Counters’ accessibility was found to be easy or very easy in 90% of all cases.  Non-western immigrants more often accessed the services of the counter than other groups. There were no significant differences between men and women accessing the counters. Most in-person users came from cities with over 100,000 inhabitants. Most e-mail users were from cities with under 20,000 inhabitants. Users were more often single, widowed or divorced. Users often had several problems: health, debt, social, mental or other. Although the services of the Counters are free of cost for all users, it is mostly low- and middle income users who access the counter’s services. 

[478] Dutch Legal Aid Board. Online (in Dutch): http://kenniswijzer.rvr.org/werkinstructies-toevoegen/diagnose--triage.html.

[479] The Council of Europe’s European Commission for the Efficiency of Justice (CEPEJ) noted: “The relative number of litigious divorce cases (reported to the total number of divorce cases) is rapidly decreasing in the Netherlands, due to social developments and the evolution of the divorce policy. In 1993, still 80% of the divorce cases were litigious. In 2008, the relative number decreased to only 30% of the total divorce cases. Therefore, only difficult and adversarial divorce cases are counted as ‘litigious divorces’. Such complex cases have to be dealt with intensively by a judge. The average length of litigious divorce cases is then becoming longer, though the number of cases to be addressed by the court has decreased significantly.” The Council of Europe’s European Commission for the Efficiency of Justice (CEPEJ), European Judicial Systems: Efficiency and Quality of Justice (ed 2010), 170. Online: https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=1694098&SecMode=1&DocId=1653000&Usage=2.

[480] In 2009, there were 3,123 Counter referrals to mediation: Dutch Legal Aid Board. Online (in Dutch): http://www.rvr.org/binaries/rbv-library/onderzoeken/mgr/monitor-2009_interactief.pdf.

[481] Website UK Citizens Advice Bureaux. Online: http://www.citizensadvice.org.uk/index/aboutus.htm.

[482] Auditor General of Ontario, 2011 Annual report, note 414, 202.

[483] See in this respect CEPEJ, note 479, 64.

[484] Courts Annual Report 2008 (De Rechtspraak, Jaarverslag 2008), 38. Online (in Dutch): http://www.rechtspraak.nl/Organisatie/Raad-Voor-De-Rechtspraak/Documents/jaarverslag-rechtspraak-2008.pdf. Annual Report 2008 .

[485]Court Client Survey 2011 (Klantwaardering Rechtspraak 2011, Onderzoek onder Professionals en Justitiabelen Gerechten), IV. Online (in Dutch):  http://www.rechtspraak.nl/Organisatie/Raad-Voor-De-Rechtspraak/Nieuws/Documents/Landelijk%20Klantwaarderingsonderzoek%20Rechtspraak%202011.pdf.

[486] Ministry of Citizenship and Immigration, Changing attitudes, changing lives: Ontario’s Sexual Violence Action Plan (March 2011), 7. Online: http://www.citizenship.gov.on.ca/owd/english/women/svap2011.pdf.

[487] For example, the Dutch Legal Aid has developed a number of on-line tools as part of the ‘Rechtwijzer’-initiative. Online (in Dutch): www.echtscheidingsplan.nl.

[488] The Law Society of Upper Canada, Report to Convocation, December 9, 2011, online: http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147486356.

[489] Home Court Advantage, note 18, 11-13.

[490] See Rule 2.03 of the Law Society of Upper Canada’s Rules of Professional Conduct, note 132.

[491] In Mamo, Jaffe and Chiodo’s study, for example, the cases in which domestic violence was reported involved 98% women with a median income of $21,000. In 84% of these cases children were involved. The Mamo Report, note 17, 82.

[492] Voices From a Broken Family Justice System, note 15, 12.

[493] Jacobs and Jacobs, note 16, 64.

[494]  See, for example, Home Court Advantage, note 18, 26.

[495] Note 18, 26.

[496] Auditor General of Ontario, 2011 Annual Report, note 414, 204.

[497] Note 414, 202.

[498] Note 414, 209.

[499] Note 475.

[500]Legal Aid Board, Legal Aid in the Netherlands, a Broad Outline. Online (in English):  http://www.rvr.org/binaries/rbv-downloads/brochures/def-opmaakvoorsel-brochure-legal-aid--rvr90265-_ve.pdf.

[501] Relatively more Ontarians had contacts with legal aid, but the number of legal aid certificates in the Netherlands was significantly higher than in Ontario. The number of legal certificates in the Netherlands was 422,530 (23% of which in family law cases). About 645,000 persons had contacted the legal services counter for information and advice (16% of the contacts were related to family law). The number of certificates issued in Ontario in 2006-2007 was almost 110,000 and the total number of Ontarians assisted was over 1,120,000. See The Netherlands Legal Aid Board, note 500, 10-13 and Trebilcock, note 160, 71.

[502] According to Legal Aid Ontario’s, Legal Aid Ontario’s Tariff and Billing Handbook (last revised 2011), section 2-4, the hourly compensation in 2011 was $89.79, $101.01, or $112.24, depending on the lawyer’s experience and activities. According to Legal Aid in the Netherlands, a Broad Outline, the hourly compensation was €110 (about $154): note 500.

[503] Legal Aid in the Netherlands, a Broad Outline, note 500, 16.

[504] Trebilcock, note 160, 74.

[505] It is difficult to compare the costs of the systems. According to CEPEJ’s Efficiency and Quality of Justice 2010, the costs minus revenues of the Dutch Court system were about €727 million (over $1 billion): note 479, 62. The costs minus revenues of Ontario’s provincial court services in 2009/2010  were $300 million, but these numbers do not include judges appointed by the federal government: Office of the Auditor General of Ontario,  2010 Annual Report, Section 4.07. Online: http://www.auditor.on.ca/en/reports_en/en10/407en10.pdf

[506] Legal Aid in the Netherlands, a Broad Outline, note 500, 3.

[507] Trebilcock, note 160, 75.

[508] Baxter and Yoon, note 388, 98. 

[509] Ministry of the Attorney General, Backgrounder - Transforming Legal Aid Ontario (September 8, 2009). Online: http://www.attorneygeneral.jus.gov.on.ca/english/news/2009/20090908-lao-bg-en.pdf.

[510] Office of the Auditor General of Ontario, 2011 Annual report, note 414, 210.

[511] Note 414, 210.

[512] Chief Justice Winkler, as quoted by Kirk Makin, “A Reformer’s Project”, note 382.

[513] The Mamo Report, note 17, 93.

[514] Supporting Families, note 319.

[515] The Mamo Report, note 17, 124.

[516] Kirk Makin, A program to fix our ailing family courts (The Globe and Mail, June 10, 2011). Online: http://www.theglobeandmail.com/news/national/a-program-to-fix-our-ailing-family-courts/article1957443/?service=mobile See also Michael Mckiernan, “Winkler calls for “fresh” approach by making expanded mediation mandatory” (Law Times, September 19, 2010). Online: http://www.lawtimesnews.com/201009207552/Headline-News/Winkler-calls-for-fresh-approach-with-expanded-mandatory-mediation.

[517] Creating a Family Law Process that Works, note 18, 11-13.

[518] Birnbaum and Bala, note 263, 412 and 413.

[519] Legal workers will often have to rely on the advice of mental health experts. This is particularly the case when there are allegations of parental alienation: Bala et al, note 266, para 38.

[520] See, for example, The Mamo Report, note 17, 10, and Home Court Advantage, note 18, 26-29.

 

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