I. Introduction
The institution of the family occupies a major place in Canadian society. Individuals in a situation of family breakdown often face many challenges, not only legal but also economic and psychological, among others. The legal system must be able to respond to the needs of families in distress; however, too often the system adds to their difficulties. The purpose of the LCO’s project on family law process, with its emphasis on the entry points to the system, is to recommend ways that the system can be simplified and made more effective and responsive to the diversity of families facing breakdown. We believe that the early stages of a family law problem are often crucial for the way a family dispute is resolved. Our projects builds on the reforms that have been implemented over the past two years by the Ministry of the Attorney General and other bodies such as Legal Aid Ontario, and takes into consideration the many studies and reforms proposed by others studying this area.
This Interim Report follows several other documents, released by the Law Commission of Ontario, including an Options Paper in 2009, a 2009 Consultation Paper and a 2010 paper setting out the results of the consultations. In this Interim Report we make short term recommendations, accepting that funding for more fundamental changes may be limited in the near future, and long term recommendations, intended to be more transformative. Information about providing feedback to this Interim Report can be found in Part VI: Next Steps.
II. A Portrait of the Ontario Family
In order to reform the family law system effectively, it is crucial to appreciate the various kinds of families that exist in Ontario today. Equally, the different forms and practices of families reflect the pluralism in contemporary Ontario. Over the last decades, the makeup of Ontario’s population has changed significantly. The changes are related to wider societal changes, such as the changing relationship between men and women, urbanization, increased mobility, the aging of the population and immigration. The ethnic and religious makeup of the province has become more diverse. Family breakdown can result from and in turn trigger other problems, related to debts, housing, employment and (mental) health. Persons who are vulnerable in a situation of family breakdown often need multiple family services.
The family justice system will have to respond in a flexible manner to the various situations that can arise in situation of family breakdown, while observing human rights and constitutional requirements; give access to safety for victims of abuse and violence; and take the interconnection between legal and other family problems into account.
III. The Family Law System: an Overview with a Focus on Entry Points
Ontario’s family justice system is fragmented and complex. The organization of the various family courts, the provision of information and legal services, various forms of non-judicial dispute resolution and family services can become a maze for many users.
Under the theme of four Pillars of Family Justice Reform over the last two years, some services have been expanded across the province, while new programs have been introduced. The court house plays a central role in the reforms, although important objectives of the reforms are to provide greater information to families in breakdown and to direct persons in a lower conflict to non-judicial dispute resolution. Legal Aid Ontario has also established new services and an on-line information program. We discuss these reforms in some detail.
In this chapter, we describe the existing system, emphasizing the importance of entry points, and set out what we perceive to be the benefits and challenges of the system. We focus on the provision of early information, access to legal services, how factors such as the presence of domestic violence, high levels of conflict and other forms of complexity affect “moving through the system”, and forms of dispute resolution.
We conclude that while there is no shortage of information, it is not clear if it is as effective as it might be. In particular, online information is hard to access. Recently launched websites such as Legal Aid’s Family Law Inform Program (FLIP) and Community Legal Education Ontario’s (CLEO) website may offer more accessible entry points (information hubs) for users.
Many people cannot access legal services because of the high cost and eligibility criteria for legal aid. As a result, many family law litigants are unrepresented or may qualify for some legal assistance short of full representation. Increasingly, low and middle income persons may access “unbundled” or “limited retainer” legal services from private lawyers, obtaining advice or representation on some aspects of their case, but not others. There are some concerns with limited retainers which we discuss. Paralegals, who can now also offer unbundled services, are currently not allowed to represent parties in a family law case.
Apart from “case management” at the courts, triages to legal services or non-judicial dispute resolution are not common. Non-judicial dispute resolution can have many forms, including negotiation and court-annexed subsidized mediation, private mediation and community-based mediation which is sometimes based on traditional concepts of family life that disadvantage women. Commentators have raised concerns about the quality of the mediators and the risk that some persons, including victims of domestic violence, can be “coerced” into mediation. However, certified mediators are required to receive training and are supposed to screen cases.
The court system can be complex and very slow. About fifty per cent of the cases remain in the system for longer than one year and a significant number of cases can remain considerably longer in the system. Lengthy procedures can involve two or more judges. This often leads to more costs for disputants and the system, and frustrations for disputants who have to re-tell their stories. Processing times may be reduced to some extent by case management at the courts. A recent amendment to the Family Law Rules aims to reduce unnecessary conferences.
Disputants may opt out of the system, although for different reasons. Persons with a higher income may choose “high end” non-judicial out of court solutions, such as “collaborative law”. These solutions are considered speedier, more confidential and less adversarial, although they can be costly. Some low and middle income persons may opt out and not pursue claims. Other persons may choose “informal methods” to resolve a dispute, for example through community mediation. Despite specific programs for Aboriginal persons and the recognition in statutes of their specific circumstances, there are particular concerns that Aboriginal persons may not access the system because of distance and cultural barriers.
Effective entry points should assist people in negotiating the system; raise awareness of the consequences of personal and legal disputes; assess legal and family challenges; and refer or “triage” to services based on this assessment.
Entry points may take the form of an individual’s personal network (family and friends); professional service providers outside the family justice system (doctors, teachers, general referral services); professional workers with some connection with the family justice system (community workers, shelter workers); legal information and summary legal advice services (telephone advice services, Information Referral Coordinators, court-based or LAO provided information systems); and actors and services that can assist in achieving a solution (community mediators, private lawyers, certified providers of non-judicial dispute resolution, Legal Aid’s advice lawyers and duty counsels, clerks and judges at the court).
In Ontario there are some holistic multi-disciplinary centres that function as a “one stop shop” for persons with family-related, often serious, problems. They offer a clear entry point for users. There are some challenges with respect to multi-disciplinary services, relating to different funders, different professional rules, and privacy and anonymity when services are offered to, and associated with, persons having serious problems.
IV. Towards a More Effective and Responsive System
In this chapter, we make recommendations to address challenges for many users that we have identified in the previous chapter and that we believe can be implemented with little or no cost or which can be funded through changes in the provision of services. For entry points, a lack of continuity in legal services can make it difficult to direct persons to a pathway. With limited funding a number of measures may achieve access to justice for a wider group of users. While the Ministry of the Attorney General would need to take the lead in allocating funding, coordinating and streamlining services, specific agencies and organizations such as Legal Aid Ontario and CLEO, the Law Society of Upper Canada, the courts and community organizations may be best positioned to assist in designing and/or implementing changes.
Provision of Information and Advice
Entry points must provide sufficient information to an individual to allow him or her to make an informed decision about the appropriate next steps in the process. In order to direct users to a next stage the entry points must have some understanding of the family dispute. Entry points of the family justice system may also play a referral role to wider family services. In order to ensure that persons have access to initial information on both legal and wider family services, we recommend a basic brochure to be distributed at strategic places, including libraries, doctors’ offices, super markets, lawyers’ offices and mediators’ offices.
Many users need face to face assistance, in addition to written and online information. “Trusted intermediaries” in community organizations can be a vital step to access the next level of information and advice, provided by legal services. We recommend training and a database for frontline service providers, where local or community demand warrants this.
There are too many websites, which are hard to navigate and are not well known/advertised. We recommend one “neutral” information hub with clear and basic information, where users would routinely go and/or to which they are referred. We recommend more child-friendly information that is easily accessible for children.
The Family Law Information Centres (FLICs) at the family courts are a main entry point to the family justice system. Their location at the court houses raises concerns about their accessibility for users who may find the justice system intimidating. We recommend an evaluation of the FLICs as the entry point for the family justice system.
We note that legal clinics, in general, do not provide family law services. This means that there are few subsidized services available outside the court house. We recommend that some hours of subsidized legal advice be given to low income persons. In certain communities there may be a shortage of legal services. In these situations we recommend that legal aid lawyers be placed in community centres, or that legal clinics be subsidized to offer advice. We further recommend tha, in rural and remote areas gaps in legal services be bridged by promoting the delivery of online services by legal professionals operating in other areas.
Legal Representation Issues
Unbundled legal services (“limited scope retainers”) offered by lawyers can be useful for some users and we recommend that the Law Society of Upper Canada ensure that lawyers are trained and tested about unbundled services and consider that only more experienced lawyers can offer unbundled services in family matters.
Because of the complexity of family legal matters, many unrepresented persons are in need of representation rather than more information. For some users self-help could work if the materials are designed effectively and there is access to some assistance in using them. We recommend that for unrepresented litigants who can benefit from “self-help” materials, more online forms and online materials be offered, or telephone lines be created to assist individuals in using these.
Many persons are apprehensive about the legal fees in a family dispute. We recommend that private lawyers give more transparency about costs.
Pro bono services in family law could achieve access to justice for some individuals. Pro bono services could be allocated to individuals most in need of these by triage. We recommend that Pro Bono Law Ontario be funded to act as a gateway for pro bono services in family law.
Paralegals are currently not allowed to represent in family law. We consider that in simple, uncontested separations and divorces, paralegals can make a contribution to the family legal system. We recommend that the Law Society of Upper Canada review the scope of activities of paralegals in family law.
The current scope of legal aid could be increased by, for example, offering unbundled lawyer’s assistance, telephone services which assist in using “self-help” materials, an incremental use of (family) legal clinics, a further expansion of duty counsel services, and making legal aid certificates available for legal advice with respect to negotiating agreements and mediation.
We recommend that Legal Aid Ontario explore how providing proportional legal aid services to different user groups can widen the scope of legal aid. We further recommend that LAO reserve funding for hardship cases.
Although legal insurance could be a way of giving low and middle income persons access to legal assistance in family disputes, and in some jurisdictions this possibility exists, there are costs and complications, and we make no recommendation on this matter.
Dispute resolution
We have concluded that lawyers’ services should be better integrated into non-judicial dispute resolution. We recommend that low income persons should have access to some hours of subsidized legal advice. The involvement of lawyers can change the dynamics of non-judicial dispute resolution. We recommend that lawyers receive increased training about their role in non-judicial dispute resolution.
In the judicial dispute resolution process, it is important that the nature of a conflict is detected at an early stage, so that court staff and judges can give priority to cases and allocate resources. We recommend that for the management of high conflict cases court staff be assisted by mental health experts.
Responding to a Pluralist Society
It is important that persons with specific needs have access to effective entry points that lead to a smooth and expedient transition to specific family justice services, and that there are appropriate referrals to other family services. We recommend the evaluation at regular intervals of entry point services and early responses for persons with specific needs, for example related to language, literacy, age, culture, disability or being Deaf, deafened or hard of hearing.
For persons in rural and remote areas it can be difficult to access services because of distance. Although telephone, online and chat services are not suitable for all users we recommend the development of long distance services. We further recommend that priority be given to the delivery of traditional methods of dispute resolution for Aboriginal persons, including through funding for adequate education for providers of these types of dispute resolution.
V. Transforming the System
From our research and our consultation process we conclude that the family justice system is in need of a drastic change. A clear “front door”, a focus on early prevention of problems and continuity of services are essential for an efficient and responsive family justice system.
We believe that a comprehensive entry point should be the foundation of the family justice system and connect users to wider family services. “Multi-disciplinary multi-function centres” for all families with legal questions, challenges or problems regarding family matters should be close to the community, and provide a low-threshold front door. They should be supported by expert teams which operate from a central location, and by mobile services for persons in rural and remote areas (after addressing privacy and confidentiality issues). We recommend a study with the objective of establishing a comprehensive system of multi-disciplinary multi-function centres, located in the community that can serve as the initial source of information and guidance in family law matters and related matters.
Connecting multi-disciplinary multi-function centres to wider family services would involve a number of ministries and organizations. We recommend that the relevant ministries dealing with family services establish a Steering Committee that explores how legal and non-legal family services can be connected.
The multi-disciplinary multi-function centres have the following elements: they provide initial legal information and advice, they perform a basic triage to specialized services, they assist in the early resolution of disputes and they are a gateway to family services for families with serious multiple problems. We recommend a comprehensive website which is the main reference for all persons facing family challenges and problems. We recommend the creation of a triage system preliminary to families entering the court system. We recommend funding for a function assisting disputants in achieving early resolution of a dispute, and we recommend that existing multi-disciplinary specialist services be strengthened and new services be created, where local demand warrants this.
While entry points can, in our view, play a significant role in transforming the system, main elements of the family justice system are also in need of structural reform. We recommend that more funding be given for legal aid and that more flexible eligibility criteria be established, so that subsidized legal assistance can be given according to legal needs.
Although dispute resolution methods are not the subject of this report we briefly address these. We do not see significant benefits in making an attempt to mediate mandatory. We recommend that the courts review their current processes to assess the effectiveness and responsiveness to litigants’ needs. We further recommend that the Province work with the federal government to establish Unified Family Courts across the province. We also recommend that the courts, where possible, allocate one judge to a case after a settlement conference, in order to reduce duplications and ensure a timely process.
Although reforms cannot wait until all desirable research has been completed, it can be undertaken contemporaneously with the design of reforms and realistically before the implementation of any transformation reforms. We therefore recommend that data on services and users’ use of these services be systematically collected.
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