A. Background
The LCO Family Law Roundtable took place on September 13, 2008. The purpose of the Roundtable was to bring together experts and stakeholders in the area of family law, from across Ontario, to discuss and narrow down family law reform options for the LCO. Thirty-three representatives of various organizations participated in the Roundtable (see Part VII for a list of attendees). Participants included legal clinic workers, community organizations’ representatives, family lawyers, judges, law professors, legal organization representatives and government representatives. They came from across Ontario. A range of minority and marginalized groups including Aboriginal, racialized, anti-violence against women, disability and low income groups, were also represented. The LCO warmly thanks all participants for their contribution to the family law consultation process.
To prepare Roundtable discussions, the LCO circulated a pre-conference paper entitled “Roundtable on Family Law Reform: Getting Started on the Discussion” among participants. This paper pointed out some of the main themes for discussion at the Roundtable:
· Social trends;
· Procedural issues;
· Substantive issues; and
· Project design.
This paper provided guidelines for discussion to the participants; however, participants were free to conduct the discussion as they wished and to establish what they perceived to be priorities in the area of family law.
During the Roundtable, participants were divided into two groups that included representatives of each type of organization mentioned above. The LCO hired two facilitators and LCO staff acted as an observer in this process. It is worth noting that members of each group raised similar topics.
B. Issues Raised
1. Process Issues
Very early in the day, participants expressed the need for reform related to the family law process. Process issues appeared to have a particularly serious impact on participants’ working lives. For example, one judge expressed the difficulty of not receiving enough and appropriate information from unrepresented litigants in order to be able to make the best decisions. Process issues also appeared to have, perhaps more importantly, a significant impact on the participants’ clientele. For example, a representative of a Family Law Information Centre (FLIC) explained how frustrated users of the family justice system were at not being able to understand the language used by lawyers and other actors in the system and how, as a result, they felt disempowered.
A number of concerns related to delay and particularly to the need to attend to urgent matters expeditiously. A participant explained that if it takes four months to obtain a conference date, some people will have no other choice but to engage the police to respond to the violence they are enduring. Ontarians should not have to wait for conflicts to escalate before the relevant actors of the family justice system become involved. Participants suggested the following efforts (among others) would help address delay:
· a triage system that could identify and distinguish urgent issues, issues related to children and child protection, as well as issues related to violence and child custody for example;
· unbundling family law issues to facilitate resolution of simple issues without triggering the use of the entire court system;
· a case management system; and
· more frequent use of settlement conferences.
Some mentioned that they would want to see the LCO examine issues related to conflict resolution. These participants believed that research should be geared towards finding out what drives conflict resolution and try to get away from a ‘one-size-fits-all’ model of conflict resolution. Part of this concern is the tension between public and private dispute resolution. Some of the problems with each of these dispute resolution systems include the following:
· lack of flexibility in the court system;
· lack of precedent in private dispute resolution;
· unclear guidelines as to when it is appropriate to use mediation; and
· mediators’ difficulties in terms of identifying unequal power dynamics between parties.
In addition to the issues stated above, participants raised the following process related issues:
· difficulties around disclosure obligations in family law;
· need for popular legal education about the Family Law Act, especially for parents; and
· need for better understanding the interaction among the criminal, family, child protection and immigration systems.
2. Substantive Issues
In addition to concerns related to process, participants agreed on a number of important substantive issues requiring reform. In general, participants identified a need for reviewing part I (family property) and II (matrimonial home) of the Family Law Act (FLA).[6] Some raised the issue of common law spouses’ property in relation to these two parts of the FLA and whether Nova Scotia (Attorney General) v. Walsh[7] should be followed in Ontario. However, others believed that the issue of the definition of the term “spouse” and differences in the legal regime between married and unmarried couples had already been looked at by the previous Ontario Law Reform Commission[8] and that it would not necessarily be worth pursuing for the LCO. In general, participants wanted to see corrections to errors in the FLA.
Participants mentioned the calculation of pension division, an issue that the LCO was already working on at the time of the Roundtable and regarding which the LCO since produced recommendations and a report.[9]
Others mentioned the following topics, which may be the subject of law reform:
· possibility of departing from the equalization scheme;
· definition of an adult child;
· need for cooperation between federal and provincial governments in re-thinking custody issues;
· need for mobility guidelines in cases where parents relocate post separation;
· recalculation of support; and
· emergency civil protections.
C. Fixing a Broken System
As the range of issues identified above suggests and as Roundtable participants expressed, it appears that the family justice system is “broken”. In other words, the system as a whole needs to be fixed. Various parts of the system need to be reviewed, improved and better coordinated to ensure that the entire system can work properly. As mentioned above, one example of this broken system is the lack of integration between public and private dispute resolution mechanisms. Because of the state of the system, it is crucial that the LCO respond to a real, identified need among the Ontario population.
In the face of a “broken system”, one must ask whether doing anything other than studying all the pieces of this system and bringing them together makes sense. One must also ask whether it is useful to study only pieces of such a system. Roundtable participants debated whether a “quick fixes” approach was better than a systemic one. Whichever approach it takes, the LCO, as any other actors in the system, must remain aware of the work of others who are attempting to fix other parts of the system. If the LCO identifies a specific aspect of the family law system to study, it must consider how the larger impact of work on specific issues affects the overall (dis)functioning of the system. This is not a simple task and there is a danger that working on only one part of the system may reinforce already existing problems related to the coordination of the various parts of a broken system. On the other hand, a systemic approach may be too broad for the LCO to adopt on its own. The LCO must take these challenges into account in its choice of a family law project.
D. Conclusion
The Family Law Roundtable discussions helped flesh out reform project possibilities for the LCO. During that process, the insights of participants from various Ontario regions who perform different roles in the family justice system were particularly helpful. At the end of the Roundtable day, the Executive Director announced that the LCO would narrow down project option possibilities and prepare this options paper for circulation paper among participants as well as the larger community in order to obtain their feedback and develop a family law project proposal to be submitted to its Board of Governors for approval.
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