[1] Chief Justice Warren K. Winkler, Presentation to County of Carleton Law Association – Civil Litigation CLE Program (November 19, 2010), online: http://www.ontariocourts.ca/coa/en/ps/speeches/ccll_civil_litigation_cle_program.htm. Chief Justice Winkler returned to this view in “Family Law and Access to Justice: A time for Change”, Remarks by Chief Justice Warren K. Winkler, 5th Annual Family Law Summit, The Law Society of Upper Canada (June 17, 2011), online: http://www.ontariocourts.ca/coa/en/ps/speeches/2011-Family-Law-Access-Justice.htm. He acknowledged then that the Attorney General was instituting some “important changes in services”, but that he “remain[ed] committed to the notion that more fundamental change is needed”.
[2] Ontario Civil Legal Needs Project, Listening to Ontarian:, Report of the Civil Legal Needs Project (The Ontario Civil Legal Needs Project Steering Committee, May, 2010), 57 (Listening to Ontarians), online: http://www.lsuc.on.ca/media/may3110_oclnreport_final.pdf.
[3] Law Commission of Ontario (LCO), Voices from a Broken Family Justice System: Sharing Consultation Results, online: http://www.lco-cdo.org/family-law/family-law-process-consultation-results.pdf.
[4] Alfred A. Mamo, Peter G. Jaffe, Debbie G. Chiodo, Recapturing and Renewing the Vision of the Family Court (2007), online: http://www.learningtoendabuse.ca/sites/default/files/Family%20Court%20Study%202007.pdf [the Mamo Report].
[5] OBA Family Law Section, ADR Institute of Ontario & OAFM, Home Court Advantage: Creating a Family Law Process that Works – Final Report (September 2010), online: http://www.adrontario.ca/media/Family%20Law%20Process%20Reform%20Report_final_web.pdf.
[6] Ontario Superior Court of Justice, Family Strategic Plan, online: http://www.ontariocourts.on.ca/scj/en/famct/familylawstrategicplan.htm. The Court’s Strategic Plan includes an emphasis on the needs of children: Prioritizing of Children Initiative – Statement of Objectives (December 2012), online: http://www.ontariocourts.ca/scj/en/famct/prioritizing-children.pdf.
[7]Ontario Court of Justice, Biennual Report 2006-2007, 54, online: http://www.ontariocourts.ca/ocj/files/annualreport/ocj/2006-2007-EN.pdf.
[8] The University of Toronto Faculty of Law, The Middle Income Access to Justice Initiative, online: http://www.law.utoronto.ca/about/giving-back-our-communities/access-justice-initiative.
[9] We note that many areas of law require the use of “experts” to assist in legal determinations. For example, the evaluation of property under the Family Law Act, R.S.O. 1990, c. F.3 requires the use of evaluators and accountants to address the division of pensions or jewellers to help determine the value of jewellry; and s.30(1) the Children’s Law Reform Act, R.S.O. 1990, c. C.12, allows a judge to appoint “a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child.” Our reference to the use of experts other than legal experts is slightly different, however: we mean the need of experts in other disciplines to consider the non-legal problems faced by family disputants as a way of understanding the part those problems play in relation to the legal dispute and how addressing those problems can either reduce the legal dispute or focus the legal dispute or help prevent the parties returning to court again and again.
[10] Professor Julie Macfarlane has been completing a study in which she and her team interviewed 250 unrepresented litigants in three provinces, including Ontario, and 100 “upfront” workers, such as those at the court counter and duty counsel (Conversation with the LCO, November 27, 2012). The study was at the pre-analysis stage; however, Macfarlane says that the “pattern is very clear”. Also see Don Butler, “Self-represented litigants ‘treated with contempt’ by many judges, study finds” Ottawa Citizen (January 1, 2013), online: http://www.ottawacitizen.com/mobile/story.html?id=7762754. This article also refers to the Macfarlane study and her findings.
[11] Anne-Marie Ambert, Divorce: Facts, Causes and Consequences (3rd ed) (Vanier Institute of the Family, November 2009), online: http://www.vanierinstitute.ca/include/get.php?nodeid=190. In 2008, about 42% of marriages in Ontario were projected to end in divorce before the couples’ thirtieth wedding anniversary: Human Resources and Skills Development Canada, Indicators of Well-being in Canada: Family Life – Divorce, online: http://www4.hrsdc.gc.ca/.3ndic.1t.4r@-eng.jsp?iid=76. Our report does not address divorce proceedings or differentiate between separation and divorce, since its focus is on the early stages at which family law disputants seek assistance. Also see Noel Semple, Cost-Benefit Analysis of Family Service Delivery: Disease, Prevention, and Treatment (June 2010) (Commissioned by the LCO) 3, online: http://www.lco-cdo.org/family-law-process-call-for-papers-semple.pdf.
[12] Some 80 per cent of divorces are uncontested: Mary Bess Kelly, “Divorce cases in civil court, 2010/2011” Juristat (Statistic Canada, March 12, 2012) 5, online: http://www.statcan.gc.ca/pub/85-002-x/2012001/article/11634-eng.pdf. Kelly points out that divorce rates have declined approximately 2 per cent per year over the period 2006/2007 and 2010/2011: 9.
[13] Ab Currie, The Legal Problems of Everyday Life: The Nature, Extent and Consequences of Justiciable Problems
Experienced by Canadians (Government of Canada, 2009) 34, online: http://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/rr07_la1-rr07_aj1/rr07_la1.pdf. Over 81 per cent said that it was “extremely important” to resolve their family breakdown problems.
[14] LCO, Voices from a Broken Family Justice System, note 3, 31. As we explained in the results of the consultations, the children had been “brought together by a counselling service with which they had been involved. The children and their parents signed written consents to participate in this consultation. The head of this counselling service, who has significant experience providing services to youth and their parents, co-facilitated the meeting.” A review of the family law system in the U.K. reported similar findings: UK Ministry of Justice, Family Justice Review Interim Report (March 2011) 151-52, online: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/162316/family-justice-review-interim-rep.pdf.pdf. The Final Report was released in November 2011, online: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/162302/family-justice-review-final-report.pdf.pdf. The U.K. study addressed state child proceedings, as well as their role in private proceedings, and was concerned with all stages of the process.
[15] 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 11, 24.
[16] UK Ministry of Justice, Family Justice Review Interim Report, note 14, 151.
[17] Molly Dragiewicz and Albert DeKeseredy, 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) 50, online: http://www.lukesplace.ca/pdf/Study-on-the-Experiences-of-Abused-Women.pdf.
[18] Semple, note 11, 17.
[19] Semple, note 11, 18-19.
[20] Semple, note 11, 34-35.
[21] Dragiewicz and Dekeseredy, note 17.
[22] Currie, note 13, 19.
[23] Currie, note 13, 16 and 19.
[24] Currie, note 13, 46.
[25] Michael Trebilcock, Report of the Legal Aid Review (Ministry of the Attorney General, 2008) vi, online: http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/trebilcock/legal_aid_report_2008_EN.pdf.
[26] The Vanier Institute reports that of all working people in Canada, female lone-parents between 25 and 44 years of age work on average the longest hours.This amounts to nearly 11 hours of paid and unpaid work per day over a 7-day week: Roger Sauvé, Family Life and Work Life: An Uneasy Balance (Vanier Institute of the Family, 2009) 16. A 2011 report of Statistics Canada states that among family types, lone-parent families with children (the vast majority headed by mothers) had the highest debt to income ratio. This was 227 per cent compared to 170 per cent for couple families with children: Matt Hurst, Debt and Family Type in Canada (Statistics Canada, April 2011) 44, online: http://www.statcan.gc.ca/pub/11-008-x/2011001/article/11430-eng.pdf.
[27] According to Statistics Canada, “23% [of spousal homicides] were against separated spouses and 2% were against divorced spouses.” Statistics Canada, Family Violence in Canada: A Statistical Profile 2011 (Ministry of Industry, 2011) 33, online: http://www.statcan.gc.ca/pub/85-224-x/2010000/part-partie4-eng.htm. Although there has been a decline in spousal homicides (44% lower than 30 years ago), “the rate of spousal homicides
against females has consistently been about three to four times higher than that for males” and “female victims of spousal homicide were more likely than male victims to be killed by a partner from whom they were separated (26% versus 11%)”. The same pattern has been observed with regard to non-lethal separation assault: Dragiewicz and DeKeseredy, note 17, 12-13. In its 2011 Report, the Domestic Violence Death Review Committee noted that in cases reviewed between 2003 and 2011, “74% of all cases…involved a couple where there was a history of domestic violence” and “72% of the cases involved a couple with an actual or pending separation”: Domestic Violence Death Review Committee: 2011 Annual Report (Office of the Chief Coroner of Ontario, September 2012) iii, online: http://www.mcscs.jus.gov.on.ca/stellent/groups/public/@mcscs/@www/@com/documents/webasset/ec160943.pdf.
[28] Macfarlane, note 10. Also see Rachel Birnbaum and Nicholas Bala, “Experiences of Ontario Family Litigants with Self-Representation” (NJI, February 2012), online: http://www.google.ca/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CDIQFjAA&url=http%3A%2F%2Fwww.probonostudents.ca%2Fwp-content%2Fuploads%2F2011%2F08%2FJan-13-Birnbaum-Bala-Family-Litigants-Access-to-Justice-NJI-Feb-20121.pdf&ei=buRvUab4F-Pl4APIh4Ao&usg=AFQjCNFbKC-5mPjYzUwvY0pmX2N6SemrBw&bvm=bv.45368065,d.dmg.
[29] Macfarlane, note 10.
[30] Michael McKiernan, “Self-represented opponents: Case highlights difficulties of facing litigants without lawyers”, Law Times (June 18, 2012) 11. This article also refers to the difficulties judges face when parties are unrepresented. On this, also see Rachel Birnbaum, Nicholas Bala, and Lorne Bertrand, “The Rise of Self-Representation in Canada’s Family Courts: the Complex Picture Revealed in Surveys of Judges, Lawyers and Litigants” (2012) (CBR in press).
[31] Law Commission of Ontario, Research Priorities Report (April 2007) (Sossin Report), online: http://www.lco-cdo.org/SossinResearchReport.pdf. The LCO Board of Governors had asked Professor Lorne Sossin of the University of Toronto Faculty of Law (now Dean of Osgoode Hall Law School) to recommend potential projects for the new Law Commission of Ontario.
[32] Law Commission of Ontario, Division of Pensions upon Marital Breakdown Final Report (January 2009), online: http://www.lco-cdo.org/en/pensions-final-report.
[33] Law Commission of Ontario, “LCO sees recommendations enacted”, onlinehttp://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), online: http://www.ontla.on.ca/web/house-proceedings/house_detail.do?Date=2009-02-19&Parl=39&Sess=1&locale=en.
[34] Law Commission of Ontario, Family Law [Project] Options Consultation Paper (January 2009), online: http://www.lco-cdo.org/en/family-law-options-consultation-paper.
[35] Law Commission of Ontario, Best Practices at Family Justice Entry Points: Needs of Users and Responses of Workers in the Justice System (September 2009), online: http://www.lco-cdo.org/en/family-law-process-consultation-paper.
[36] LCO, Voices from a Broken Family Justice System, note 3.
[37] Professor Brenda Jacobs and Professor Lesley Jacobs, Multidisciplinary Paths to Family Justice, Professional Challenges and Promise Practices (June 2010), online: http://www.lco-cdo.org/en/family-law-process-call-for-papers and Semple, note 11.
[38] See Ontario Work’s Directive: “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 [sic], may be entitled.” Ministry of Community and Social Services, Ontario Works Directives, 5.5 Family Support, online: http://www.mcss.gov.on.ca/documents/en/mcss/social/directives/ow/0505.pdf.
[39] See Ontario Disability Support Program’s policy about support and similar payments: “An ODSP applicant/recipient must make reasonable efforts to obtain compensation or realize any financial resource to which he/she or his/her dependant may be entitled. The Director must be satisfied that a person is taking action, where appropriate, to obtain support payments.
Eligibility does not depend on the actual receipt of support payments, but on the efforts being made to obtain support. Efforts being made may include attending court appointments and providing the ODSP office with current information.” Ministry of Community and Social Services, Ontario Disability Support Program – 5.15 Income Support Directives, online: http://www.mcss.gov.on.ca/en/mcss/programs/social/directives/directives/ODSPDirectives/income_support/5_15_ODSP_ISDirectives.aspx.
[40] See Art. 12 of the Convention on the Rights of the Child, which gives the child capable of forming his or her own views the right to express these views in a legal proceeding. United Nations Human Rights – Office of the High Commissioner for Human Rights, Convention on the Rights of the Child, Article 12: 1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. Online: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx.
[41] We spent time with children in our consultation process and found that they had many concerns arising from family disputes, including their participation in their families and their interactions with their lawyers. They were frank about the impact disputes within their family had on them. See LCO, Voices from a Broken Family Justice System, note 3, especially at pp. 8 and 28ff. The U.K. study on the family law system there found children had similar concerns: for comments from the children themselves, see Interim Report, note 14, 48ff. The final recommendations placed considerable emphasis on ensuring the system was responsive to children’s needs and concerns: Final Report, note 14.
[42] Submissions to the Interim Report are available on file at the LCO.
[43] This “ordering” of the benchmarks (initial information, advice, more complex advice) is for convenience, since different individuals will enter the system at different points (for example, one person will speak to friends or relatives or an advisor informally before looking for information, while another will search the internet for information, and yet another will make an appointment with a lawyer).
[44] Sustainability refers primarily to financial support; but it also refers to structuring a program based on expectations that the services will be provided when they need to be provided. We believe that a system cannot be built on volunteers, even though the willingness of many lawyers and others to contribute their time to various programs is to be applauded. However, it is difficult to sustain a system and to ensure it meets standards when important functions of the system, functions that become integrated as an expected part of the system, are performed only or primarily by volunteers. Nevertheless, we do recognize that it may be necessary to rely on volunteers if people are to receive the help they need. Eventually, based on the availability of financial resources and the importance of the particular service, governments or other bodies may decide to fund services provided by volunteers, making them therefore more sustainable. We also recognize that financial sustainability is never guaranteed.
[45] Law Commission of Ontario, online: http://www.lco-cdo.org/en/content/family-law-reform.
[46] Roderick A. MacDonald, “Access to Justice in Canada Today: Scope, Scale and Ambitions”, Julia Bass, W.A. Bogart and Frederick Zemans, eds., Access to Justice for a New Century, The Way Forward (Toronto: Law Society of Upper Canada, 2005), 19, 23.
[47] Faisal Bhabha, “Institutionalizing Access-to-Justice: Judicial, Legislative and Grassroots Dimensions” (2007) 33 Queen’s L.J. 139, 149.
[48] University of Toronto Faculty of Law, note 8.
[49] Michael Trebilcock, Anthony Duggan and Lorne Sossin, eds., Middle Income Access to Justice (Toronto: University of Toronto Press, 2012).
[50] Membership of the NAC has been described as “broadly representative of the legal community across Canada, including judges, the organized Bar, legal regulators, legal aid plans, pro bono plans, court administrators, academics, and the deputy justice ministers for Alberta and Canada”: Cristin Schmitz, “Access to justice initiative builds: Committee creating blueprint for change” Lawyers Weekly (August 24, 2012), online: http://www.lawyersweekly.ca/index.php?section=article&articleid=1720.
[51] Canadian Judicial Council, A Strong, Effective and Efficient Judiciary: Annual Report 2010-2011, online: http://www.cjc-ccm.gc.ca/cmslib/ar10-11.
[52] Law Commission of Ontario, A Framework for the Law as It affects Older Adults: Advancing Substantive Equality for Older Persons through Law, Policy and Practice Final Report (Toronto: April 2012) 13, online: http://www.lco-cdo.org/older-adults-final-report.pdf.
[53] The reforms and planned reforms are discussed in Ministry of the Attorney General, Court Services Division Annual Report 2010-2011, online: http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/courts_annual_10/Court_Services_Annual_Report_FULL_EN.pdf. The reforms identified there have all been implemented and are discussed later in this final report. Also see Ministry of the Attorney General, Family Law Reform in Ontario: Backgrounder, online: http://www.attorneygeneral.jus.gov.on.ca/english/news/2011/20110311-dv-bg.asp.
[54] LCO, Voices from a Broken System, note 3.
[55] LCO, Voices from a Broken Family Justice System, note 3. A woman from an interpretation service explained that a woman sharing her ethnic background came to the service to seek help with her family problem because she did not know where to get help: 44. A culture and language specific legal clinic (that did not offer family services) told us about a Chinese woman who was unable to speak English and whose telephone discussion with Chinese-speaking lawyers left her thinking that lawyers could not help her: 45. Sometimes, family members can provide crucial on-going support, although they may not be able to provide reliable advice other than in a personal sense. For example, one participant in our consultations commented that her sister had accompanied her at different stages of the process and reviewed documents with her over a period of three years: 12.
[56] CLEO, Your Legal Rights: Family Law, online: http://yourlegalrights.on.ca/family-law.
[57] Ministry of the Attorney General, A Guide to Procedures in Family Court (2010, rev. 2012), online: http://www.attorneygeneral.jus.gov.on.ca/english/family/guides/fc/.
[58] Ministry of the Attorney General, What You Should Know about Family Law in Ontario (1999, rev. Nov. 2012), online: http://www.attorneygeneral.jus.gov.on.ca/english/family/familyla.pdf. 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, online: http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/mag_annual/annual-rpt_2008_09.asp. It is possible to call a phone number to obtain information in over 170 languages. For family law, see Ministry of the Attorney General, Family Law, online: http://www.attorneygeneral.jus.gov.on.ca/english/justice-ont/family_law.asp.
[59] Department of Justice, Family Law, online: http://www.justice.gc.ca/eng/fund-fina/famil/fjic-vidf.html. This website has a number of publications, as well as information, including resources for children.
[60] Government of Canada, Canada Benefits, Divorce and Separation, online: http://www.canadabenefits.gc.ca/f.1.2cl.3st@.jsp?catid=14&lang=eng&geo=99. This website provides access to relevant federal programs in each province.
[61] Legal Aid Ontario, Family Law Information Program, online: http://www.legalaid.on.ca/en/getting/flip.asp#.
[62] Your Law: Family Law in Ontario, online: http://yourontariolaw.com/.
[63] The Law Society’s portal’s website explains, “Your Law: Family Law in Ontario provides you with information and access to resources on the emotional, financial, legal and social considerations relating to child custody, access and child support and will help you make the best decisions for you and your family”: I, note 62.
[64] Community Legal Education Ontario (CLEO), Resources and Publications, online: http://www.cleo.on.ca/en/resources-and-publications/pubs?language=en&field_legal_topic_tid_i18n=87.
[65] Family Law Education for Women (FLEW), All Women: One Family Law, online: http://www.onefamilylaw.ca.
[66] LCO in conversation with Julie Matthews, Executive Director of CLEO, on April 11, 2012.
[67] Information provided to the LCO by Julie Matthews, Executive Director of CLEO, in an e-mail dated April 27, 2012.
[68] Ontario Ministry of the Attorney General, ”Family Law Information Centres (FLICs)”, online: http://www.attorneygeneral.jus.gov.on.ca/english/family/infoctr.asp.
[69] Ontario Ministry of the Attorney General, “Mandatory Information Programs (MIPs)”, online: http://www.attorneygeneral.jus.gov.on.ca/english/family/family_justice_services.asp#mip. The MIP is provided for in Rule 8.1 of Courts of Justice Act, R.S.O. 1990, c. C.43, Family Law Rules, O. Reg. 114/99, online: http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_990114_e.htm#s8p1s1. Also see County of Carleton Law Association, “Notice to the Public: Mandatory Information Program (MIP)”, online: http://www.ccla-abcc.ca/uploadedFiles/Notice%20to%20the%20Public%20-%20Mandatory%20Information%20Program.pdf and MIP Flowchart, online, http://www.ccla-abcc.ca/uploadedFiles/Mandatory%20Information%20Program%20-%20Flowchart.pdf.
[70] Ministry of the Attorney General Court Services Division Annual Report 2011-2012, 41, online: http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/courts_annual_11/Court_Services_Annual_Report_FULL_EN.pdf.
[71] Alfred A. Mamo, Peter G. Jaffe and Debbie G. Chiodo, Recapturing and Renewing the Vision of the Family Court (“The Mamo Report”), online: http://www.learningtoendabuse.ca/sites/default/files/Family%20Court%20Study%202007.pdf.
[72] The Mamo Report, note 71, 55 and 56.
[73] The Mamo Report, note 71, 8.
[74] LCO, Voices From a Broken System, note 3, 61.
[75] LCO, Voices From a Broken System, note 3, 50.
[76] LCO, Voices From a Broken System, note 3, 46-48.
[77] See, for example, IRC availability in Barrie (Monday to Friday 9:00 am to 3:30 pm), Bracebridge (9:00 to 11:00 am on Tuesday and Friday) and Orilla (2:00 to 5:00 pm Tuesdays): http://www.themediationcentre.com/family/family-law-information-centres-flic. This is the website of The Mediation Centre which provides the IRC.
[78] Jacobs and Jacobs, note 37, 29 and 30.
[79] Jacobs and Jacobs, note 37, 29 and 30.
[80] LCO, Voices from a Broken Family Justice System, note 3, 50 and 51.
[81] Ontario Ministry of the Attorney General,” Family Law Information Centres (FLICs)” states, “See the listing of FLIC offices throughout Ontario”, note 68. This takes the individual to Ontario Ministry of the Attorney General, “Service Provider by Family Court Location”, online: http://www.attorneygeneral.jus.gov.on.ca/english/family/service_provider_by_family_court_location.asp. Clicking on the particular location identifies a mediation services provider rather than information about the full services provided by the FLIC for someone looking merely for information or advice, for example.
[82] Ontario Ministry of the Attorney General, “Family Law Information Centre (FLIC) Locations”, online: http://www.attorneygeneral.jus.gov.on.ca/english/family/infoctr_locations.asp.
[83] For example, the information for the FLIC for London and Middlesex County is available on the site Information London, online: http://info.london.on.ca/details.asp?id=12962. Information about the FLIC in Kingston can be found on the site KFL&A Community Resources Database: Record Details, online: http://kingston.cioc.ca/record/KGN2370.
[84] With the approval of a judge, Legal Aid Ontario’s Family Law Information Program can be completed online as a substitute for the MIP: LAO, Family Law Information Program, note 61.
[85] Individuals can arrange to attend a MIP session through their family mediation and information service provider: Ministry of the Attorney General, “Mandatory Information Programs (MIPs)” (March 2012), online: http://www.google.ca/search?q=mandatory+information+sessions&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a.
[86] Comment made at the 2012 Conference of L’Association des jurists d’expression française de l’Ontario (AJEFO).
[87] This view was echoed by lawyers in Birnbaum and Bala’s study of lawyers and unrepresented litigants: “Views of Ontario Lawyers on Family Litigants without Representation” (2012) 63 UNBLJ 99, 118-119.
[88] Rachel Birnbaum and Nicholas Bala, “Experiences of Ontario Family Litigants with Self-Representation”) 12, online: http://www.google.ca/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CDMQFjAA&url=http%3A%2F%2Fwww.probonostudents.ca%2Fwp-content%2Fuploads%2F2011%2F08%2FJan-13-Birnbaum-Bala-Family-Litigants-Access-to-Justice-NJI-Feb-20121.pdf&ei=JnxxUcXNBYmayAHjo4DoBg&usg=AFQjCNFbKC-5mPjYzUwvY0pmX2N6SemrBw&bvm=bv.45373924,d.aWc.
[89] Birnbaum and Bala, “Experiences of Ontario Family Litigants”, note 88, 13. Litigants also reported their experiences with the MIP, the Legal Aid toll free hotline and the Advice Lawyer at the FLIC.
[90] 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, note 2, 28.
[91] LCO, Voices From A Broken Family Justice System, note 3, 58.
[92] OECD, The Future of the Family to 2030 – A Scoping Report (December 2008) 61, online: http://www.oecd.org/dataoecd/11/34/42551944.pdf. The comments are primarily about “e-government”, described in the report as mostly about the one-way provision of information by government. 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”. Mary Stratton, Alberta Self Represented Litigants Mapping Project (Canadian Forum on Civil Justice, January 2007), 17 and 18, online: http://www.cfcj-fcjc.org/sites/default/files/docs/2007/mapping-en.pdf.
[93] In the International Adult Literacy and Skills Survey (IALSS), “prose literacy” refers to “the knowledge and skills needed to understand and use information from texts including editorials, news stories, brochures and instruction manuals” and “document literacy” refers to “the knowledge and skills required to locate and use information contained in various formats, including job applications, payroll forms, transportation schedules, maps, tables and charts”. See Lynn Barr-Telford, François Nault and Jean Pignal, Building on our Competencies: Canadian Results of the International Adult Literacy and Skills Survey (2003) (Human Resources and Skills Development Canada, Statistics Canada, November 2005) 13, online: http://www.statcan.gc.ca/pub/89-617-x/89-617-x2005001-eng.pdf. The IALSS “is the Canadian component of the Adult Literacy and Life Skills program” carried out by “governments, national statistical agencies, research institutions and multi-lateral agencies” providing “internationally comparable measures” in four forms of literacy: 12. The study involved over 23,000 individuals 16 and over from across Canada.
[94] Barr-Telford, et al, note 93, 28 and 121. The IALSS uses five levels of prose literacy, with level 1 referring to the ability to “read relatively short text, locate and enter a piece of information into that text, and complete simple, one-step tasks such as counting, sorting dates or performing simple arithmetic”. Other relevant skills include integrating two or more pieces of information (level 2), integrating information “from dense or lengthy text” or “multiple pieces of information” (level 3), making inferences from lengthy or complex passages and related tasks “to find solutions to abstract problems” (level 4) and searching for information “in dense text…to make high-level inferences or use specialized background knowledge” (level 5). Each level also refers to ability to understand mathematics.
[95] Barr-Telford, et al, note 93, 121. Level 1 document literacy means the individual can “locate a piece of information based on a literal match or enter information from person knowledge onto a document”; level 2 means the individual is able to locate information, even though “distracters” are present, is able to do so on the basis of low level inferences, “cycle through information in a document or…integrate information from various parts of a document”.
[96] Barr-Telford, et al, note 93, 45.
[97] Ontario Forms Assistant, online: https://formsassistant.ontariocourtforms.on.ca/Welcome.aspx?lang=en. The forms assistant asks a series of questions, the answers to which may lead to other questions. The answers allow the automatic completion of the form which must be submitted at the courthouse in person (that is, not electronically).
[98] The literature regarding litigants who represent themselves often draw a distinction between “unrepresented litigants”, those who would like to have a lawyer but are unable to hire one, and “self-represented litigants”, those who are in a position to hire a lawyer but choose not to. We have not drawn a distinction between these two groups in considering the use of information and self-help forms. It is difficult to determine how many unrepresented – or self-represented – litigants in family cases there are: Rachel Birnbaum and Nicholas Bala, “Views of Ontario Lawyers on Family Litigants without Representation” note 87, 101.
[99] University of Toronto Faculty of Law, Middle Income Access to Justice Initiative, “Background Paper” 19, online: http://www.law.utoronto.ca/documents/conferences2/AccessToJustice_LiteratureReview.pdf.
[100] Anne‐Marie Langan, “Threatening the Balance of the Scales of Justice”, (2005), 30:2 Queen’s LJ 825, 825, online: www.carters.ca/news/2005/QueensLJ/langan.pdf.
[101] Langan, note 100, 861, 862.
[102] On unrepresented litigants expectations about the impact of lack of representation on settlement, see for example, Birnbaum and Bala, “Experiences of Ontario Family Litigants”, note 88.
[103] Dragiewicz and DeKeseredy, note 17.
[104] Birnbaum and Bala, “Views of Ontario Lawyers”, note 87, 109.
[105] Birnbaum and Bala, “Experiences of Ontario Family Litigants”, note 88, 22-23.
[106] Trevor C.W. Farrow, et al, Addressing the Needs of Self Represented Litigants in the Canadian Justice System (Association of Canadian Court Administrators, March 27, 2012, 16, online: http://www.cfcj-fcjc.org/sites/default/files/docs/2012/Addressing%20the%20Needs%20of%20SRLs%20ACCA%20White%20Paper%20March%202012%20Final%20Revised%20Version.pdf. (Citations omitted.)
[107] Listening to Ontarians, note 2, 22.
[108] Alison Brewin with Lindsay Stephens, Legal Aid Denied: Women and the Cuts to Legal Aid Services in BC (West Coast Leaf and Canadian Centre for Policy Alternatives (BC Office), September 2004) 19, online: http://www.westcoastleaf.org/userfiles/file/legal_services.pdf.
[109] Birnbaum and Bala, “Views of Ontario Lawyers”, note 87, 8ff. This does not mean that the outcome was necessarily better for the represented party: 113
[110] The Mamo Report, note 4, 92.
[111] UK Ministry of Justice, Family Justice Review Interim Report, note 14, 155.
[112] Melina Buckley, Moving Forward on Legal Aid: Research on Needs and Innovative Legal Approaches (CBA, June 2010) 39, online: http://www.cba.org/CBA/Advocacy/PDF/CBA%20Legal%20Aid%20Renewal%20Paper.pdf.
[113] Listening to Ontarians, note 2, 10.
[114] Semple, note 11. Also see the amounts identified by a family lawyer who indicates that negotiations may range from $2,000 to $50,000 or more; a court case can cost at least $10,000 with most in the range of $15,000 to $25,000 and “[i]f the case goes to trial, the costs can be two or three times higher”: Brian Galbraith, “What is the cost of separation or divorce in Barrie, Ontario?”, Ontario Family Law Blog (April 21, 2010), online: http://www.ontariofamilylawblog.com/2010/04/articles/process-choices/what-is-the-cost-of-a-divorce-or-separation-in-barrie-ontario/.
[115] Semple, note 11, 16.
[116] Semple, note 11, 63.
[117] See Legal Aid Ontario, “Certificate Services”, online: www.legalaid.on.ca/en/getting/certificateservices.asp. See Legal Aid, “Contribution Agreements”, online: http://www.legalaid.on.ca/en/getting/clientcontributions.asp. The maximum income for two parents with three children or one parent with four children is $43,000 annually for duty counsel and $26,714 for a certificate (or if the total income is between $26,714 and $33,960, legal aid may be provided, but a contribution may be required).
[118] Legal Aid Ontario, “Am I eligible for legal aid?”, online: www.legalaid.on.ca/en/getting/eligibility.asp.
[119] Trebilcock, note 25.
[120] Family Law Services Centres are located in Toronto, North York, Newmarket, Brampton, Chatham, Windsor and Sarnia: Legal Aid Ontario, “Family Law service Centres (FLSC)”, online: http://www.legalaid.on.ca/en/getting/type_familylawservicecentres.asp. The FLSC can provide assistance ranging from help with documents, referral to Advice Lawyer (provided by LAO) or to a private practice lawyer who does legal aid work (based on eligibility), mediation and settlement services, to full representation by a staff lawyer and referrals to other social service agencies.
[121] Legal Aid Ontario, “Legal Aid at a Glance”, online: http://www.legalaid.on.ca/en/about/fact_ataglance.asp.
[122] Law Society of Upper Canada, Rules of Professional Conduct, Rule 1.02, online: http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147486159.
[123] 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.
[124] LawPro’s Submissions on Unbundled Legal Services, note 123, 10 (emphasis in original).
[125] LSUC, Rules of Professional Conduct, note 122, Rules 2.01, 2.02 and 6. These Rules address issues relating to competence, quality of service and communication.
[126] See the list of ethics and professionalism competencies tested by the barristers’ licensing examinations: Law Society of Upper Canada, “Entry Level Barrister Competencies”, online: http://www.lsuc.on.ca/BarristerCompetencies. Also see the competencies tested by the solicitors’ licensing examinations: http://www.lsuc.on.ca/SolicitorCompetencies. The examinations are multiple choice, with some independent questions, other related to a case study.
[127] Downtown Legal Services, online: http://dls.sa.utoronto.ca/. The clinic handles child custody, access and support, spousal support, and restraining orders. It does not handle child protection, divorce or division of property.
[128] Downtown Legal Services, “Our Services”, online: http://dls.sa.utoronto.ca/our-services/; LCO conversation with Lisa Cirillo , Acting Executive Director of Downtown Legal Services, on April 17, 2012.
[129] Pro Bono Students Canada, PBSC National Family Law Program: Program Description (July 2012) (on file with the Law Commission of Ontario). Also see PBSC, online: http://www.probonostudents.ca/. PBSC facilitates the volunteer services of students in other areas of law and in placements with non-profit organizations. The Access to Justice Fund is administered by the Law Foundation of Ontario.
[130] PBSC, Court and Tribunal Program, online: http://www.probonostudents.ca/programs/court-and-tribunal. For the Osgoode first year and upper year programs, see Osgoode Hall Law School, Family Law Project, online: http://www.osgoode.yorku.ca/pbsc/flp; and the University of Toronto programs, online: http://www.law.utoronto.ca/programs-centres/programs/pbsc-pro-bono-students-canada/pbsc-family-law-project.
[131] William C. Vickrey, Nicole Claro-Quinn & Martha Wright, Courts and Universities Partner to Improve Access to Justice for all Californians (2011) 96, online: http://ncsc.contentdm.oclc.org/cgi-bin/showfile.exe?CISOROOT=/accessfair&CISOPTR=234.
[132] Vickrey, et al, note 131, 97.
[133] Vickrey, et al, note 131, 97-98.
[134] Vickrey, et al, note 131, 98. Given the pool of students available, “on average each year’s class of Justice Corps members speaks 24 different languages either fluently or conversationally”.
[135] LCO conversation with Nikki Gershbain on June 11, 2012; LCO conversation with Lisa Cirillo, note 128.
[136] Law Foundation of Ontario, “Law Foundation Public Interest Articling Fellowships”, online: http://www.lawfoundation.on.ca/fellowships.php.
[137] Legal Aid Ontario, “LAO aims to recruit lawyers at every stage of their careers” (May 25, 2012), online: http://www.legalaid.on.ca/en/news/newsarchive/1205-25_lawyerworkforcestrategy.asp. For the 2012-2013 articling year, Legal Aid Ontario hired 51 articling students across the province who worked in a variety of locations, including as in court duty counsel, at staff offices and in the Provincial Office. It planned to hire a significant number of articling students for the 2013-2014 articling year, as well: information provided by LAO.
[138] ) Law Society of Upper Canada, Articling Task Force Final Report (October 25, 2012) 17, online: http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147489848.
[139] Osgoode Hall Law School, Osgoode Public Interest Requirement, online: http://www.osgoode.yorku.ca/opir, and Osgoode Hall Law School, Clinics and Experiential Learning, online: http://www.osgoode.yorku.ca/clinics-experiential
[140] The Ontario Bar Association, the ADR Institute of Ontario and OAFM, Family Law Process Reform: Supporting Families to Support their Children (April 2009) 4 (Supporting Families), online: http://www.oba.org/En/homecourt/PDF/Tab%203%20-%20family_law_submission-ontario.pdf. This same coalition held a three day summit in November 2009, which attracted over 120 participants including leaders from the bench, bar, government and mediation and collaboration fields. See the resulting report: Home Court Advantage—Creating a Family Process That Works (November 2009) (Home Court Advantage), online: http://www.oba.org/En/publicaffairs_en/PDF/Interim_Report_Home_Court_Advatnage_FINAL_12dec09.pdf.
[141] In some instances, programs in some parts of the province have been expanded to other areas or throughout the province, while in other cases, there are new initiatives: Ministry of the Attorney General Court Services Division, Annual Report 2011-2012, note 70. The Annual Report states that courts have either heard more matters or the matters heard, while decreased, have decreased less than they would have, as a result of the implementation of the Mandatory Information Program: 31ff.
[142] Listening to Ontarians, note 2, 57.
[143] In Ontario, of 107,822 active divorce and other family breakdown cases in 2009/2010, 57,072 were in the system for one year or less; 33,646 between one and two years; 8,990 between two and three years; 3,763 between three and four years; and 4,351 four years or longer: Mary Bess Kelly, “Family court cases involving custody, access and support arrangements 2009/2010”, Juristat, (March 29, 2011) 7-8, 16 (“Family court cases”), online: http://www.statcan.gc.ca/pub/85-002-x/2011001/article/11423-eng.pdf.
[144] The five year trends in the 2011-2012 Annual Report of the Court Services Division show that since 2007-2008, in all family courts, the total number of new proceedings had decreased by 5 %. In the Superior Court, the number of new proceedings decreased by 3.5%, in the Family Court by 3% and in the Ontario Court of Justice by 9%. In all Ontario courts combined there were about 70,000 new family proceedings in 2011-2012, other than child protection proceedings. Note 70, 31-33. Of all family cases in Canadian courts, about 70 per cent are divorce and other family breakdown cases. The remaining 30 per cent involve adoption, child protection, civil protection, guardianship and other family matters: Kelly, “Family court cases”, note 143, 17.
[145] Ministry of the Attorney General Court Services Division Annual Report 2011-2012, note 70, 32-34.
[146] According to its bi-annual report 2008-2009, almost 68% of all family matters in the Ontario Court of Justice are custody, access and support matters: Ontario Court of Justice, BiEnnual Report, 2008-2009, 51, online: http://www.ontariocourts.ca/ocj/files/annualreport/ocj/2008-2009-EN.pdf.
[147] Kelly, “Family court cases”, note 143, 9.
[148] Kelly, “Family court cases”, note 143, 10.
[149] Law Reform Commission of Canada, Working Paper No.1, The Family Court (Information Canada: Ottawa, 1974) 11, online: https://archive.org/stream/familycourt00comm/familycourt00comm_djvu.txt.
[150] In May 2012, Attorney General John Gerretsen said that he hoped to expand the unified family court across the province and thought that it might be possible incrementally: Michael McKiernan, “Province-wide UFC finally coming to Ontario?” Legal Feeds (May 2012), online: http://www.canadianlawyermag.com/legalfeeds/851/Province-wide-UFC-finally-coming-to-Ontario.html.
[151] Ministry of the Attorney General, “Ontario’s Family Court Structure”, online: http://www.attorneygeneral.jus.gov.on.ca/english/family/famcourts.asp.
[152] Department of Justice, The Unified Family Court Summative Evaluation Final Report (March 2009) iii-iv (The UFC Evaluation), online: http://www.justice.gc.ca/eng/pi/eval/rep-rap/09/ufc-tuf/ufc.pdf.
[153] Department of Justice, The UFC Evaluation, note 152, i.
[154] Family Law Rules, note 69.
[155] Mary Lou Benotto, “The Family Law Rules: Why?” (Winter 2004) 23 Advocates’ Soc. J. 6, 6.
[156] Single judge case management means that one judge is assigned the case at the case conference stage and follows the family up to and including the trial management conference. Other members of the judiciary are assigned the trials.
[157] Superior Court of Justice, Family Law Strategic Plan, note 6 (emphasis in original).
[158] The Superior Court of Justice: Mapping the Way Forward, 2010-2012 Report, 24-25, online: http://www.ontariocourts.on.ca/scj/en/reports/annualreport/10-12.pdf. On Information and Referral Coordinators, see Ministry of the Attorney General, Family Law Information Centres (FLICs), note 68. The IRC is able to “provide information on alternative dispute resolution options, issues related to separation and divorce and community resources”.
[159] On DROs, see Superior Court of Justice, “Dispute Resolution Officer Program Pilot Project in the Superior Court of Justice in Brampton, Milton, Newmarket, Barrie and Durham”, online: http://www.ontariocourts.on.ca/scj/en/notices/pd/dispute-resolution-2012.htm. The Court issued a new Practice Direction effective January 1, 2013 to apply to all DRO Programs: Superior Court of Justice, Dispute Resolution Officer Program Pilot Project in the Superior Court of Justice: Practice Direction, online: http://www.ontariocourts.on.ca/scj/en/notices/pd/dispute-resolution-officer-program.htm.
[160] LCO conversation with the Chief Justice Heather F. Smith on July 4, 2012.
[161] Department of Justice, Summary of Activities for the Child-Centered Family Justice Fund 2003-2009, Family Justice Initiatives (Part 1), 17, online: http://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/ccfjf-fdfae/index.html.
[162] Evaluation of the Ottawa Family Case Manager Pilot Project—Year Two (Ottawa Report), online: http://www.ccla-abcc.ca/uploadedFiles/Year_Two_Evaluation.pdf. The pilot is continuing.
[163] 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, online: http://canlii.ca/t/1ntb.
[164] Ottawa Report, note 162, 8-9.
[165] Family Law Act, note 9; Children’s Law Reform Act, note 9. For a summary of the amendments, see Ministry of the Attorney General, Family Law Reform in Ontario, online: http://www.attorneygeneral.jus.gov.on.ca/english/news/2011/20110311-dv-bg.asp.
[166] Ministry of the Attorney General, “Domestic Violence Court”, online: http://www.attorneygeneral.jus.gov.on.ca/english/about/vw/dvc.asp.
[167] Ministry of the Attorney General, Family Court Support Workers Program, online: http://www.attorneygeneral.jus.gov.on.ca/english/ovss/family_court_support_worker_program/default.asp. For a list of services, see Ministry of the Attorney General, “Family Justice Services”, online: http://www.attorneygeneral.jus.gov.on.ca/english/family/family_justice_services.asp.
[168] Legal Aid Ontario, “Settlement conferences help resolve Children’s Aid cases faster”, online: http://www.legalaid.on.ca/en/news/newsarchive/1205-31_settlementconferences.asp. As this communication indicates, settlement conferences in non-Children’s Aid cases are available across the province. However, this service is not listed on LAO’s list of family services on its website: Legal Aid Ontario, “Family Law”, online: http://www.legalaid.on.ca/en/getting/type_family.asp.
[169] For example, see Legal Aid Ontario, Family Law Service Centre, Toronto North, online: http://centralontario.cioc.ca/record/MET0091. Also see re mediation services offered by Legal Aid in Milton: Legal Aid Ontario, Family Law Information Centre (FLIC), online: http://www.legalaid.on.ca/en/getting/type_familylawinformationcentre.asp
[170] For example, The Mediation Centre was awarded a contract to undertake mediation services in the Barrie Family Court in 1995. See online: http://www.themediationcentre.com/.
[171] Ministry of the Attorney General, “Family Mediation Services”, online: http://www.attorneygeneral.jus.gov.on.ca/english/family/mediation.asp. The website provides a link to a site which providing information about mediation services at all Family Court locations. Clicking on a location may produce information about the mediation services at that location or at another location, or may simply provide an email address. See Ministry of the Attorney General, “Family Service Provider by Family Court Location”, online: http://www.attorneygeneral.jus.gov.on.ca/english/family/service_provider_by_family_court_location.asp.
[172] Ministry of the Attorney General, “Family Mediation Services”, note 171.
[173] LCO, Voices from a Broken System, note 3, 25.
[174] At the Family Courts, on-site mediation for less complex cases is free. For off-site mediation, which occurs in the mediator’s office, there are eight hours of subsidized mediation subject to a fee scale according to which parties pay for the subsidized mediation on the basis of income and number of dependents. In practice, there may be some flexibility as long as sufficient progress is made. The client’s contribution begins at $5 per hour for persons with low incomes. See the User Fee Schedule online: http://mediate393.ca/wp-content/uploads/2011/08/User-Fee-Schedule-2011-14.pdf.
[175] In Ontario there are two organizations which provide standards for mediation: the Ontario Association for Family Mediation (OAFM) and the ADR Institute of Ontario: see http://www.oafm.on.ca/ and http://www.adrontario.ca/, respectively. In addition, there is Family Mediation Canada: see http://www.fmc.ca/.
[176] For example, “participants mentioned that there are many competent family mediators in Ontario and if it was better regulated, advertised and made financially accessible, there would be no reason why mediation should not be used more often in solving family disputes”: Voices from a Broken System, note 3, 14.
[177] Ministry of the Attorney General, “Family Mediation”, online: http://www.attorneygeneral.jus.gov.on.ca/english/family/divorce/mediation/.
[178] Rene L. Rimelspach, “Mediating Family Disputes in a World with Domestic Violence: How to Devise a Safe and Effective Court-Connected Mediation Program”, 17:1 Ohio St. J. Disp. Resol. 95 (2001-2002). Rimelspach reviews the arguments supporting the view that mediation is never appropriate for victims of domestic violence and those supporting the view that it can sometimes be appropriate.
[179] Chief Justice Warren Winkler, “Access to Justice—Mediation: Panacea or Pariah?” (2007) 16:1 Canadian Arbitration and Mediation Journal 5, 6, online: http://www.adrcanada.ca/resources/documents/CAMJournalfall2007.pdf.
[180] In the context of family arbitration, see Ministry of the Attorney General, “Independent Legal Advice”, online: http://www.attorneygeneral.jus.gov.on.ca/english/family/arbitration/independent_legal_advice.asp. Also see, more broadly, the Law Society of Upper Canada, “When Independence Legal Representation or Advice Required”, online: http://www.lsuc.on.ca/IndependentLegalAdviceOrRepresentationRequired/; and “Tips for Providing Independent Legal Advice”, online: http://www.lsuc.on.ca/TipsforProvidingIndependentLegalAdvice/.
[181] LawPRO, “ILA Checklists”, online: http://www.practicepro.ca/practice/ILAchecklist.asp.
[182] See, for example LeVan v. LeVan (2008), 90 OR (3d) 1.
[183] Ron Stewart, The Early Identification and Streaming of Cases of High Conflict Separation and Divorce: a Review. (Ottawa: Department of Justice Canada, 2001) 21, online: .http://www.justice.gc.ca/eng/rp-pr/fl-lf/divorce/2001_7/pdf/2001_7.pdf.
[184] Trebilcock, note 25, 80.
[185] Karen Cohl and George Thomson, Connecting Across Language and Distance: Linguistic and Rural Access to Legal Information and Services (Law Foundation of Ontario, December 2008) 48, 52, 86, online: http://www.lawfoundation.on.ca/wp-content/uploads/The-Connecting-Report.pdf.
[186] Listening to Ontarians, note 2, 45.
[187] LCO, Voices from a Broken Family Justice System, note 3, 27.
[188] Jacobs and Jacobs, note 37, 14.
[189] Jacobs and Jacobs, note 37, 15.
[190] Supporting Families, note 140, 7ff. The authors suggested that there would be cost savings elsewhere in the system that could help fund expanded FLICs and that there could be a small increases to filing fees marriage licence fees: 21.
[191] Family service centres offer a wide range of services, sometimes to a particular community, and may have been in existence for many years. See, for example, Somali Centre for Family Services, online: http://www.somalifamilyservices.org/ and Family Services Ottawa, online: http://familyservicesottawa.org/about-family-services-ottawa/. The Somali Centre has been in existence since 1991, the Ottawa Centre since 1914 (see http://www.shopinottawa.com/Family-Service-Centre-Of-Ottawa-Carleton/318217.htm, which links to the Ottawa Centre.
[192] Ontario Council of Agencies Serving Immigrants, What is Family Counselling? (1 March 2010), online: www.settlement.org/sys/faqs_detail.asp?faq_id=4000363.
[193] Stewart, note 183, 31.
[194] See, for example, Immigrant Women Services Ottawa, online: http://www.immigrantwomenservices.com/ and Windsor Women Working with Immigrant Women, online: http://www.wwwwiw.org/. WWWWIW began in 1983 because the existing family service centre was not providing the kinds of services to immigrant women they thought necessary. On a visit by the LCO Executive Director to WWWWIW in November 2009, staff of WWWWIW talked about how, although women might come for employment assistance, they often raised family concerns as well.
[195] Stewart, note 183, 23.
[196] Stewart, note 183, 31.
[197] Stewart, note 183, 41.
[198] Family Service Ontario, online: www.familyserviceontario.org/.
[199] Family Service Toronto, “Our Programs, Services and Areas of Expertise”, online: http://www.familyservicetoronto.com/programs.html.
[200] Ontario Association of Credit Counselling, online: http://www.oaccs.com/main.html. OACCS is a network of accredited credit counselling agencies and certified credit counsellors. There are 36 OACCS member agencies with 52 locations across Ontario.
[201] Jacobs Jacobs, note 37, 30.
[202] These are all discussed in Jacobs and Jacobs, note 37. The range of possible services is illustrated by the Schlifer Clinic which offers specialized legal services (in family, immigration and criminal law), counselling services in several languages and interpreter services for non‐English speaking immigrant and refugee women; the Clinic liaises with shelters, community centres, health services, legal services and housing services. Although the range of services is broad, it is intended for women who have experienced violence: Barbra Schlifer Commemorative Clinic, online: http://schliferclinic.com/. Also see Family Violence Project of Waterloo Region, online: http://www.fvpwaterloo.ca/en/ and Durham Region’s Intimate‐Relationship Violence Empowerment Network (DRIVEN), online: http://www.durhamdriven.com/.
[203] Jacobs and Jacobs, note 37, 48.
[204] Stewart, note 183, 39ff. Stewart identifies risk factors for children such as significant changes in where they live or go to school, the loss of relationships, the introduction of new relationships when their parents find new partners, the emotional cost of their parents’ hostility and the presence of domestic violence, among others.
[205] LCO, Voices from a Broken Family Justice System, note 3, 32.
[206] Courts of Justice Act, note 69, ss. 89 and 112. The Children’s Lawyer may either act as counsel for the child, or prepare a report, or a combination of both.
[207] Information provided by the OCL office to the LCO on May 8, 2012.
[208] In 2010, those earning high incomes were more likely to use the internet; 94% of persons earning at least $87,000 used the internet compared with about 60% of persons earning $30,000 or less, according to Statistics Canada. Usage also varied between urban (82% usage at least) and rural (about 76%) residents. About half of “seniors” used it and among those not using the internet, nearly 40% were living in low-income. The reasons for not using the internet were the lack of skills (22%), finding computers too difficult (22%), lack of access (12%) and cost (9%). See Statistics Canada, “Individual Internet use and E-Commerce” The Daily (October 12, 2011), online: http://www.statcan.gc.ca/daily-quotidien/111012/dq111012a-eng.htm.
[209] Law Commission of Ontario, Modernization of the Provincial Offences Act: Final Report (Toronto: August 2011), 126, online: http://www.lco-cdo.org/en/provincial-offences-final-report. In November 2012, the Ministry of the Attorney General announced that the government was establishing a steering committee to improve access to justice in the official language of choice: “Making it Easier to Access Justice in French” (November 20, 2012), online: http://news.ontario.ca/mag/en/2012/11/making-it-easier-to-access-justice-in-french.html.
[210] Law Commission of Ontario, A Framework for the Law as It affects Older Adults, note 52, 107; Law Commission of Ontario, A Framework for the Law as It affects Persons with Disabilities: Advancing Substantive Equality for Persons with Disabilities through Law, Policy and Practice (Toronto: September 2012), 96, online: http://www.lco-cdo.org/en/content/persons-disabilities. As we say on p.107 of our older adults report, “A progressive realization approach involves concrete, deliberate and targeted steps implemented within a relatively short period of time with a view to ultimately meeting the goal of full implementation of the principles.”
[211] Canadian Charter of Rights and Freedoms, ss.15 and 28, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c.11.
[212] Human Rights Code, R.S.O. 1990, c. H.19.
[213] For example, in June 2012, Ontario’s Human Rights Code was amended to add gender identity and gender expression to the list of protected grounds: Ontario Human Rights Commission, “Human Rights and gender identity and gender expression”, online: http://www.ohrc.on.ca/en/human-rights-and-gender-identity-and-gender-expression. How broad these protections are in fact will depend on how the terms are interpreted.
[214] About 72% of families consist of married couples (above the Canadian figure of 67%) and over 10% live in common law relationships (about the same as the Canadian average). Statistics Canada reports that nationally the number of common law relationships was higher than the number of lone-parent families for the first time in 2011. Statistics Canada, Portrait of Families and Living Arrangements in Canada: Families, households and marital status, 2011 census of population, (Ottawa: Ministry of Industry, 2012), 5, online: http://www12.statcan.gc.ca/census-recensement/2011/as-sa/98-312-x/98-312-x2011001-eng.pdf.
[215] The growth in male lone-parent families was just over 16% compared to 6% for female headed lone-parent families). However, there are nearly 13% female-headed lone parent families compared to 3.5% male lone-parent families. Statistics Canada, Portrait of Families and Living Arrangements in Canada, note 214.
[216] Civil Marriage Act, S.C. 2005, c. 33. The enactment of the Civil Marriage Act by Parliament followed the recognition of the right of same-sex couples to legally marry by several courts in the provinces. In Ontario, the Court of Appeal found limiting marriage to a man and a woman was discriminatory: Halpern v. Canada (Attorney General) (2003), 65 OR (3d) 161.
[217] According to Statistics Canada, “45.6% of all same-sex couples in Canada live in Toronto, Montréal and Vancouver, compared to 33.4% of opposite-sex couples”. Statistics Canada, Portrait of Families and Living Arrangements in Canada, note 214, 8. As Statistics Canada reports, “Between 2006 and 2011, the number of same-sex married couples nearly tripled (+181.5%), while opposite-sex married couples experienced more modest growth (+2.9%).” Yet “[t]he number of same-sex common law couples increased by 15.0%, slightly higher than the 13.8% growth for opposite-sex common-law couples.”
[218] While there were over 43% of couples with children living at home and just over 40% without children in 2001, by 2006, for the first time, there were slightly more couples without children at home (nearly 43%) than there were with children (just over 41%): Statistics Canada, Portrait of Families and Living Arrangements in Canada, note 214. The gap increased In 2011 (there were slightly more than 39% of couples with children and over 44% of couples without children): Statistics Canada, Portrait of Families and Living Arrangements in Canada, note 214.
[219] Statistics Canada, Portrait of Families and Living Arrangements in Canada, note 214, 8. Just over 47% of opposite-sex couples had children at home, compared to over 9% of same sex couples, with nearly five times the percentage of female same-sex couples with children at home (16.5% ) than male same-sex couples (3.4%). Of same-sex couples with children at home, about 80% were female couples. Also see Anne Milan, Leslie-Anne Keown and Covadonga Robles Urquijo, Families, Living Arrangements and Unpaid Work (Ottawa: Minister of Industry, December 2011), Component of Statistics Canada, Women in Canada: A Gender-Based Statistical Report, 6th ed., 10, online: http://www.statcan.gc.ca/pub/89-503-x/2010001/article/11546-eng.pdf: In 2006, 49% of women in opposite-sex unions, 16% of women in same-sex couples and nearly 3% of men in same-sex couples had children aged 24 and under present in the home.
[220] Compare the results of a poll taken in 2005 just before Parliament voted on the change to the definition of marriage (52% of respondents disagreed with the change) and a poll in 2012 showing 59% of respondents agreed with the definition of marriage: CBCnews, “Canadians deeply split on same-sex marriage, poll suggests” (April 10, 2005), online: http://www.cbc.ca/news/canada/story/2005/04/10/gay-marriage-050410.html and Angus Reid Public Opinion, “Australians Support Same-Sex Marriage More Than Americans and Britons” (March 3, 2012), online: http://www.angus-reid.com/polls/44437/australians-support-same-sex-marriage-more-than-americans-and-britons/, respectively.
[221] Meg Luxton, Changing Families, New Understandings (Vanier Institute of the Family, June 2011) 11, online: http://www.vanierinstitute.ca/include/get.php?nodeid=164.
[222] In step families, the children are some combination of being the biological or adopted children of only one partner of the couple or of one or more children being the biological or adopted children of both parents and other children being the biological or adopted children of one or the other parent. In 2011, 10% of children lived in step families. About 63% of these children were actually step-children: Statistics Canada, Portrait of Families and Living Arrangements in Canada, note 214, 14.
[223] Statistics Canada, Portrait of Families and Living Arrangements in Canada, note 214, 11. The proportion of step families was lowest in Ontario (11%) and in Ontario, was lowest in Toronto (nearly 8%).
[224] In 2011, just over 63% lived with married parents; however, this was a decrease from 2001 when about 68% lived with married parents: Statistics Canada, Portrait of Families and Living Arrangements in Canada, note 214, 13.
[225] Statistics Canada, Portrait of Families and Living Arrangements in Canada, note 214, 14.
[226] Just over 3% of children lived with grandparents in 2001 and nearly 5% per cent in 2011: Statistics Canada, Portrait of Families and Living Arrangements in Canada, 14. A very small number (.5%) of children 14 or under live only with one or both grandparents (these are called “skip generation” families): 15.
[227] Bill 67, Children’s Law Reform Amendment Act (Relationship with Grandparents), 2012, 1st. Sess., 40th Parl., 2012, (passed second reading 31 May 2012 and ordered referred to Standing Committee). The Bill, sponsored by MPPs from each of the parties, had passed to the Standing Committee on Regulations and Private Bills before prorogation on October 15, 2012. The Bill would have amended the Children’s Law Reform Act to provide that a custodial parent is not to pose barriers to the relationship between the child(ren) and grandparent(s) and to include among the factors relevant to the best interests of a child for purposes of determining custody, the willingness of a parent to facilitate contact between the child(ren) and the grandparent(s). The Nova Scotia Law Reform Commission has released a report on access by grandparents to their grandchildren: Nova Scotia Law Reform Commission, Grandparent-Grandchild: Access, Final Report (April 2007), online: http://www.lawreform.ns.ca/Downloads/GrandparentFinal.pdf. The Commission recommended that “the Maintenance and Custody Act be amended to provide that an application for access may be made by grandparents with the leave of the court, as would be the case of anyone other than a parent or guardian. Grandparents can apply for custody of or access to their grandchildren in all jurisdictions in Canada, but are not distinguished from other “strangers” who may seek custody to or access in most jurisdictions, including Ontario.
[228] This has been the case with families from countries from which immigrants have long emigrated, such as Italy, but it is also true of immigrants from more recent source countries. In the latter case, grandparents may have come to Canada as part of the family reunification immigration program. However, recent and planned changes are intended to reduce the backlog in the program, while providing for relatively long term but nevertheless impermanent stays (up to two years) for parents and grandparents through a “Super Visa” program: Citizenship and Immigration Canada, “News Release — Canada welcomes largest number of parents and grandparents in almost twenty years”, online: http://www.cic.gc.ca/english/department/media/releases/2012/2012-11-05.asp; The terms of the Super Visa, available as of December 1, 2012, can be found at Citizenship and Immigration Canada, online: http://www.cic.gc.ca/english/visit/supervisa-who.asp.
[229] See Sauvé, note 26, 10.
[230] Cara Williams, Economic Well-being (Ottawa: Minister of Industry, December 2010), Component of Statistics Canada, Women in Canada: A Gender-Based Statistical Report, 6th ed., 8, online: http://www.statcan.gc.ca/pub/89-503-x/2010001/article/11388-eng.pdf. There has generally been a decline in the wage gap among all ages. There are many reasons for the decline and for the differences relating to levels of education and the type of work younger women have achieved or do, but another reason is that men’s economic position has decreased somewhat over the past few years.
[231] OECD, The Future of the Family to 2030 – A Scoping Report, (December 2008), note 92, 10; Luxton, note 221, 4.
[232] Erin Anderssen, “With ‘the end of men,’ a new beginning”, Globe and Mail (December 26, 2012) L2. See Jacques Barrette, Work/Family Balance: What do we Really Know? (Vanier Institute for the Family, January 15, 2009), online: http://www.vanierinstitute.ca/modules/news/newsitem.php?ItemId=242#.UW8DKMrgh4I. This study focuses on the conflict between family and work, but also discusses some broader trends.
[233] Sauvé, note 26, 18. On the continued more vulnerable status of women in the workforce, see the Law Commission of Ontario’s project on vulnerable workers and precarious work: Law Commission of Ontario, Vulnerable Workers and Precarious Work Final Report (December 2012), online: http://www.lco-cdo.org/en/vulnerable-workers-final-report.
[234] Milan, et al, note 219, 21.
[235] Milan, et al, note 219, 24.
[236] Linda Duxbury and Christopher Higgins, Revisiting Work Life Issues in Canada: The 2012 National Study on Balancing Work and Caregiving in Canada (December 2012), online: http://www.healthyworkplaces.info/wp-content/uploads/2012/11/2012-National-Work-Long-Summary.pdf. This study is the third national study since 1991.
[237] For a description of the composition of the female population, in many respects similar to that of the male population, see Covadonga Robles Urquijo and Anne Milan, Female Population (Ottawa: Minister of Industry, July 2011), Component of Statistics Canada, Women in Canada: A Gender-Based Statistical Report, 6th ed., online: http://www.statcan.gc.ca/pub/89-503-x/2010001/article/11475-eng.pdf.
[238] Statistics Canada reports that “[i]n 2006, 30% of Aboriginal women aged 15 and over, versus 47% of non-Aboriginal women, lived with a spouse.” Seventeen per cent of Aboriginal women lived in common law relationships compared to 10% of non-Aboriginal women: Vivian O’Donnell and Susan Wallace, First Nations, Métis and Inuit Women (Ottawa: Minister of Industry, July 2011), Component of Statistics Canada, Women in Canada: A Gender-Based Statistical Report, 6th ed., 19, online: http://www.statcan.gc.ca/pub/89-503-x/2010001/article/11442-eng.pdf.
[239] O’Donnell and Wallace, note 238, 20.
[240] O’Donnell and Wallace, note 238, 21.
[241] O’Donnell and Wallace, note 238, 37.
[242] O’Donnell and Wallace, note 238, 27. There was less of a gap between Aboriginal men and women living on reserve; however, the rates for both groups were considerably lower than either off reserve Aboriginal men and women or non-Aboriginal men or women. On unemployment rates, see 30.
[243] O’Donnell and Wallace caution that “unemployment” should not be read without taking into account “the
complex work situation of Aboriginal people, especially those living in rural or remote communities. Official
unemployment rates, for example, may not always reflect work that is carried out for which no payment is
received. Work of this type is common in many Aboriginal communities where large amounts of time are spent
fishing, trapping, hunting, sewing, and caring for children of friends and family members. Also, there is much
seasonal work in many Aboriginal communities”: O’Donnell and Wallace, note 238.
[244] O’Donnell and Wallace, note 238, 34. In 2006, 30% of Aboriginal women lived in low income, compared to 16% of non-Aboriginal women and 26% of Aboriginal men. However, 70% of Aboriginal women’s income came from employment sources.
[245] Tina Chui, Immigrant Women (Ottawa: Minister of Industry, July 2011), 15, Component of Statistics Canada, Women in Canada: A Gender-Based Statistical Report, 6th ed., 9, online: http://www.statcan.gc.ca/pub/89-503-x/2010001/article/11528-eng.pdf. The 2006 census indicated that “[t]he largest proportion of these immigrant women, 9%, reported the United Kingdom as their place of birth, followed by the People’s Republic of China (8%), India (7%) and the Philippines (5%).” However, this refers to all immigrant women in Canada at the time of the census. A more telling figure is that “In 1971, Europe was the birthplace of 61% of recent immigrant women…; by 2006, recent immigrant women came mainly from Asia and the Middle East (59%).”
[246] Chui, note 245, 10. Looked at another way, “In 1981, 55% of recent immigrant women were members of visible minorities…; by 2006, that proportion was 76% of all recent immigrant women.”
[247] Statistics Canada reports, “In 2006, 60% of all immigrant women and 66% of those who had arrived since 2001 were married, compared with 43% of Canadian-born women”: Chui, note 245, 15. More immigrant men than Canadian born men were married (67% and 45%, respectively). Immigrant women also married younger than did Canadian-born women.
[248] Milan, et al, note 219, 18. Also see Tina Chui and Hélène Maheux, Visible Minority Women, Component of Statistics Canada, Women in Canada: A Gender-Based Statistical Report, 6th ed., 15-16, online: http://www.statcan.gc.ca/pub/89-503-x/2010001/article/11527-eng.pdf. They report that 51% of visible minority women and 46% of non-visible minority women live in married relationships, while nearly 4% of visible minority women compared to 12% of non-visible minority women live in common law relationships. Ten per cent of visible minority women were lone parents, compared to 2% of visible minority men, while 8% of non-visible minority women and 2% of non-visible minority men were lone-parents. They note, “the shares [of lone-parents] were higher for women who were Black (24%), Latin American (14%) and Southeast Asian (12%).”
[249] See Chui and Maheux, note 248, 18: 35% of visible minority women aged 25 to 54 (the core working age group) had a university degree, while this was the case for 23% of non-visible minority women in the same age group.
[250] Chui, note 245, 8.
[251] O’Donnell and Wallace, note 238, 40. The 2009 study was done by telephone; many homes on reserves and in settlements may not have landlines.
[252] O’Donnell and Wallace, note 238, 41.
[253] All information taken from Statistics Canada, 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/pdf/97-558-XIE2006001.pdf.
[254] Aboriginal Affairs and Northern Development Canada, “Ontario Region”, online: http://www.aadnc-aandc.gc.ca/eng/1100100020284/1100100020288.
[255] Legal Aid Ontario (LAO), The Development of Legal Aid Ontario’s Aboriginal Strategy (June 20, 2008) 2, online: Legal Aid Ontario www.legalaid.on.ca/en/publications/downloads/0807-29_DiscussionPaper_public.pdf.
[256] Mary Stratton, “Our Children are Gone”: Aboriginal Experiences of Family Court (Canadian Forum on Civil Justice, January 2007), online: http://cfcj-fcjc.org/docs/2007/stratton-ourchildrenaregone.pdf. Efforts to address these issues cannot ignore First Nations protests that transcend specific aspects of the system, as evident in manifestations occurring as this Report is being written: Idle No More, online: http://idlenomore.ca/. For an example of a report, see CBCnews, “Idle No More protests held across Canada” (January 11, 2013), online: http://www.cbc.ca/news/canada/story/2013/01/11/idle-no-more-protests.html.
[257] Barr-Telford, et al, note 93, 56.
[258] Ontario Ministry of Aboriginal Affairs, “Aboriginal Education”, online: http://www.aboriginalaffairs.gov.on.ca/english/services/datasheets/education.asp. Also see the Canadian Federation of Students-Ontario “Fact Sheet: Indigenous Education in Ontario” which states that about 28% of the Indigenous population in Ontario has no diploma or other credential, online: http://cfsontario.ca/downloads/CFS-Indigenous%20Education%20factsheet.pdf.
[259] For example, division of property assets is not covered by provincial legislation as it is for the rest of the population. See Derrickson v. Derrickson [1986] 1 S.C.R. 285. Efforts to change this have been ongoing: see Bill S-2: Family Homes on Reserves and Matrimonial Interests or Rights Act which was passed by the Senate and as of the date of this Report had received first reading in the House of Commons on December 8, 2011, online: http://www.parl.gc.ca/LegisInfo/BillDetails.aspx?Language=E&Mode=1&billId=5138145.
[260] First Nations Land Management Act, S.C. 1999, c. 24, s. 17.
[261] LAO, The Development of Legal Aid Ontario’s Aboriginal Strategy, note 255, 11.
[262] LAO, The Development of Legal Aid Ontario’s Aboriginal Strategy, note 255, 16.
[263] Legal Aid Ontario, “ Aboriginal Justice Strategy”, online: http://www.legalaid.on.ca/en/about/fact_aboriginaljusticestrategy.asp.
[264] Statistics Canada, Population Growth in Canada: From 1851 to 2061: Population and Dwelling Counts, 2011 Census, online: http://www12.statcan.gc.ca/census-recensement/2011/as-sa/98-310-x/98-310-x2011003_1-eng.pdf. The Report projects that by 2031, immigration could account for 80% of Canada’s population growth: 4. If that is the case, approximately 25% of Canada’s population would be foreign-born: Anne Milan, Migration: International 2009 (Statistics Canada, July 2011) 3, online: http://www.statcan.gc.ca/pub/91-209-x/2011001/article/11526-eng.htm.
[265] Tina Chui, Kelly Tran and Hélène Maheux, Statistics Canada, 2006 Census: Immigration in Canada: A Portrait of the Foreign-Born Population, 2006 Census: Findings (Ottawa, 2006), online: http://www12.statcan.ca/census-recensement/2006/as-sa/97-557/index-eng.cfm. In Ontario, slightly more than 40 per cent of immigrants originated from Asia and the Middle-East (including India, Philippines, China, Pakistan, Iran and Iraq) and just less than 40 per cent originated from Europe. In urban centers like Toronto, there were a greater proportion of immigrants from Asia and the Middle East and, in smaller centres, there were a greater proportion of immigrants from Europe: Maggie El Dakiky and John Shields, “Immigration and the Demographic Challenge: A Statistical Survey of the Ontario Region” (2009) 38 Ceris: Policy Matters 1, 8-11, online: http://www.ceris.metropolis.net/wp-content/uploads/pdf/research_publication/policy_matters/pm38.pdf.
[266] Milan, note 264, 4 and 5. However, Ontario received fewer immigrants in the period between 2006 and 2011 than previously and immigrants are increasingly settling in western Canada. The distribution of permanent residents to Ontario has decreased from 58% in 2002 to 40% in 2011: Citizenship and Immigration Canada, Immigration Overview: Permanent and Temporary Residents 2011 (2012) 31, online: http://www.cic.gc.ca/english/pdf/research-stats/facts2011.pdf.
[267] Although the 2011 census indicated that Ontario’s population had increased since 2006, Ontario was one of only three provinces and territories in which the growth between 2006 and 2011 was less than between 2001 and 2006: Statistics Canada, “The Canadian Population in 2011: Population Counts and Growth”, online: http://www12.statcan.gc.ca/census-recensement/2011/as-sa/98-310-x/98-310-x2011001-eng.cfm.
[268] Ontario Immigration, Cities & Towns, (26 March 2012). Online: www.ontarioimmigration.ca/en/living/OI_HOW_LIVE_CITIES.html.
[269] Chui, Tran & Maheux, note 265.
[270] This included 6% from the South Asian community, nearly 5% from the Chinese community and nearly 4% from the “Black” community. Statistics Canada, Visible minorities groups percentage distribution, for Canada, provinces and territories – 20% sample data, 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 25per cent).
[271] Statistics Canada, Visible minority characteristics [of Toronto], 2006 Community profiles (2006 Census) (Ottawa, March 13, 2007), online: http://www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/demo53c-eng.htm.
[272] Royson James, “Nearly a quarter of Toronto residents live in poverty”, The Toronto Star (June 11, 2012), online: http://www.thestar.com/news/gta/2012/06/11/nearly_a_quarter_of_toronto_residents_live_in_poverty_james.html. Specifically on poverty among immigrants and racialized groups, see National Council of Welfare, Poverty Profile: Special Edition (2012), online: http://publications.gc.ca/collections/collection_2012/cnb-ncw/HS51-2-2012S-eng.pdf and Citizens for Public Justice, Poverty Trends Scorecard: Canada 2012, online: http://www.cpj.ca/files/docs/poverty-trends-scorecard.pdf. For an overall summary of the “distribution” of low-income, see Brian Murphy, Xuelin Zhang and Claude Dionne Low-Income in Canada, a Multi-line and Multi-index Perspective (Statistics Canada, March 2012), ch.3, online: http://www.statcan.gc.ca/pub/75f0002m/75f0002m2012001-eng.pdf.
[273] Statistics Canada, Religions in Canada, 2001 Census Analysis Series (Minister of Industry, 2003), 8, 13, online: http://www12.statcan.gc.ca/english/census01/Products/Analytic/companion/rel/pdf/96F0030XIE2001015.pdf. About 35 per cent each fall within the categories of Protestant or Roman Catholic. Just over 3 % of the population is Muslim and about 5% are “other Christians” or Christian Orthodox. The data also show an increase in the percentage of individuals answering “no religion”. The 2006 census did not include questions about religion and the information from the 2011 census had not been released at the time of the approval of this Report.
[274] Warren Clark and Grant Schellenberg, “Who’s religious?” (Statistics Canada, nd), online: http://www.statcan.gc.ca/pub/11-008-x/2006001/9181-eng.htm. An index of “religiosity” was developed based on “the presence of religious affiliation, frequency of attendance at religious services, frequency of private religious practices and the importance of religion to the respondent”. The data were found in the General Social Survey (up to 2004) and the 2002 Ethnic Diversity Study. Immigrants from South Asia, South East Asia and the Caribbean and Central and South America exhibited high “religiosity”, while immigrants from East Asia, Western/Northern Europe and Eastern Europe were least likely to be highly religious.
[275] Immigrants may not be “racialized persons” as that term is used in common parlance; they may be white. Similarly, racialized persons may not be immigrants, but may be second, third or more generation Canadians. However, changing immigration patterns have meant that an increasing number of immigrants are “racialized”. Therefore, a brief note on terminology and classification may be useful. Immigrants are people who have emigrated from other countries throughout the world and, for our purposes, have settled in Ontario. “Racialization” has been defined as “the process by which societies construct races as real, different and unequal in ways that matter to economic, political and social life”: Ontario Human Rights Commission, Policy and Guidelines on Racism and Racial Discrimination (2005, rev. 2009), online:http://www.ohrc.on.ca/sites/default/files/attachments/Policy_and_guidelines_on_racism_and_racial_discrimination.pdf. This process may affect the lives of immigrants from particular source countries from which greater numbers of immigrants have come in recent years.
[276] For example, Janet Mosher’s study of racialized youth in Ontario schools revealed that racialized youth involved in disciplinary proceedings in the schools felt that the law was a weapon used by those in authority: Janet E. Mosher, “Lessons in Access to Justice: Racialized Youths and Ontario’s Safe Schools” (2008) 46:4 Osgoode Hall LJ 807. This view might well continue as they grow older and invoke or be brought into the family legal system.
[277] The percentage of people who speak neither official language at home in the 2011 Census was unchanged from 2006 (6.5 per cent of the population): Statistics Canada, 2011 Census of Population: Linguistic Characteristics of Canadians, online: http://www.statcan.gc.ca/daily-quotidien/121024/dq121024a-eng.pdf. Statistics Canada reported in 2006 that about 20% of Canada’s population spoke a language other than English or French at home, sometimes alone or in combination with one of those two languages. Most of these people spoke an “immigrant language”, although “more than 213,000 people spoke an Aboriginal language, and nearly 25,000 reported using a sign language”. About a third of these individuals spoke only a non-official language at home.
[278] Statistics Canada, 2011 Census of Population, note 277. The 2001 figure was just about 15 per cent. See Statistics Canada, Language(s) spoken at home, Toronto census metropolitan area (CMA), 2001, 2006 and 2011, online: http://www12.statcan.gc.ca/census-recensement/2011/as-sa/98-314-x/2011001/tbl/tbl8-eng.cfm.
[279] Cohl & Thomson, note 185, 13.
[280] Cohl & Thomson, note 185, 10.
[281] O’Donnell and Wallace, note 238, 24-26. This was particularly true of Inuit women and less likely with younger women, although younger women evidenced an interest in learning Aboriginal languages and women on reserves were more likely to be able to speak an Aboriginal language than women living off-reserve.
[282] Janice Gross Stein and Adam Cook, “Speaking the Language of Justice: A New Legal Vernacular”, Bass, et al, note 46, 163.
[283] See, for example, Ursula Kilkelly, The Right to Respect for Private and Family Lif:, A Guide to the Implementation of Art. 8 of the European Convention on Human Rights (Directorate General of Human Rights, Council of Europe, 2001) 45-48, online: http://www.refworld.org/pdfid/49f17e212.pdf.
[284] For examples in Ontario, see Children’s Law Reform Act, note 9, s.24(2), on ties with children; Family Law Act, note 9, s.1(1), on the intention of a parent to treat a child as a child of his or her family; and Child and Family Services Act, R.S.O. 1990, c. C11, s.1(3), on extended family. Also see the Divorce Act, R.S.C. 1985, c.3, s.8(3), on the intention with respect to separation.
[285] See, for example, Children’s Law Reform Act, note 9, ss.8(1), 10(1) and 20(1).
[286] Luxton, note 221, 11.
[287] Fareen Jamal, Cultural Fluency for Family Lawyers. Paper delivered at the 6th Annual Family Law Summit (May 10 and 11, 2012).
[288] Julie MacFarlane, The New Lawyer: How Settlement is Transforming the Practice of Law (Vancouver: UBC Press, 2008), 184.
[289] Barr-Telford, note 93, 66, 68.
[290] Barr-Telford, note 93, 69.
[291] Sarah V. Wayland, Unsettled: Legal and Policy Barriers for Newcomers to Canada (Community Foundations of Canada and Law Commission of Canada, 2006), 19ff, online: http://www.cfc-fcc.ca/doc/LegalPolicyBarriers.pdf.
[292] Cohl & Thomson, note 185, 15-16.
[293] Statistics Canada, Participation and Activity Limitation Survey 2006: Analytical Report (PAL Survey) (Ottawa: Minister of Industry, 2007) 16, online: http://www.statcan.gc.ca/pub/89-628-x/89-628-x2007002-eng.pdf.
[294] Statistics Canada, PAL Survey, note 293, 10, 72, 70.
[295] RHS National Team, First Nations Regional Longitudinal Health Survey 2002/3: Results for Adults, Youth and Children Living in First Nations Communities (Ottawa: Assembly of First Nations, 2007), 52 and 64, online: http://www.rhs-ers.ca/sites/default/files/ENpdf/rhs2002-03reports/rhs2002-03-technicalreport-afn.pdf.
[296] Statistics Canada, PAL Survey Part V, 8-10, online: http://www.statcan.gc.ca/pub/89-628-x/89-628-x2008011-eng.pdf. The figures for persons 25 to 34, for example, are about $33,000 for persons without a disability and approximately $23,000 for persons with a disability.
[297] The LCO’s A Framework for the Law as It Affects Persons with Disabilities discusses ways in which persons with disabilities may have difficulty accessing the legal system: note 210.
[298] Cam Schwartz and Mary Stratton. The Civil Justice System and the Public: Communication and Access Barriers for those with Disabilities (Canadian Forum on Civil Justice, January 2006) 2-3, online: http://cfcj-fcjc.org/docs/2005/cjsp-barriers-en.pdf.
[299] Kerri Joffe, Enforcing the Rights of Persons with Disabilities in Ontario’s Development Services System, Commissioned by Law Commission of Ontario (June 2010), 31, online: http://www.lco-cdo.org/en/disabilities-call-for-papers-joffe.
[300] LCO, A Framework for the Law as It Affects Persons with Disabilities, note 210.
[301] Schwartz and Stratton, note, 298, 4-5.
[302] Schwartz and Stratton, note 298, 7.
[303] Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c.11 (AODA). The Ontario courts created a committee to make recommendations to meet the requirements that reported in 2006: Making Ontario’s Courts Fully Accessible to Persons with Disabilities (December 2006), online: http://www.ontariocourts.on.ca/accessible_courts/en/report_courts_disabilities.htm. A permanent committee was created in 2007, as well as a website with educational materials relevant to accommodation and removal of barriers in the legal system and by legal professionals: Courts Disability Accessibility Education Project, online: http://www.oba.org/En/accessiblejustice/home_en/home.aspx.
[304] This is in conformity with the Accessibility Standards for Customer Service, O.Reg. 429/07, under the AODA. Specifically, see Ministry of the Attorney General, “Our Commitment to Accessibility”, online: http://www.attorneygeneral.jus.gov.on.ca/english/about/commitment_to_accessibility.asp.
[305] Schwartz and Stratton, note 298, 8.
[306] The Ministry of the Attorney General has issued guidelines in this regard. See Communication Access for People Who have Communication Disabilities: Guidelines and Resources on Communicating with People who have Communication Disabilities (2009), online: http://www.mcss.gov.on.ca/documents/en/mcss/accessibility/DevelopingStandards/Communication_Access_ENG_no_ack.pdf.
[307] See, for example, Literacy is for Life, “Factsheet #7: Literacy and Learning Disabilities”, online: http://www.nald.ca/library/research/mcl/factsht/learndis/page1.htm; Gregory S. McKenna, “Can Learning Disabilities Explain Low Literacy Performance?” (Human Resources and Skills Development Canada, September 2010), online: http://publications.gc.ca/collections/collection_2011/rhdcc-hrsdc/HS38-22-2010-eng.pdf
One of the respondents to Birnbaum and Bala’s study on litigants in the family system noted that she had a “reading disability” and found the materials at the FLIC hard to understand: Birnbaum and Bala, note 30.
[308] Comments from the Community Advocacy and Legal Centre’s meeting with the Canadian Hearing Centre, February 16, 2010, subsequently reported to the LCO.
[309] Schwartz and Stratton, note 298, 4.
[310]According to A Portrait of Seniors in Canada, in the approximately 25 years between 1981 and 2005, the proportion of seniors in the population increased from less than 10% to over 13%. It is predicted that the number of seniors will more than double by 2036 to nearly 10 million people or nearly 25% of the population. Martin Turcotte and Grant Schellenberg, A Portrait of Seniors in Canada (Statistics Canada, 2007), online: http://www.statcan.gc.ca/pub/89-519-x/89-519-x2006001-eng.pdf.
[311] Some of these issues are discussed in the Law Commission of Ontario’s Framework for the Law as It Affects Older Adults, note 52.
[312] Barr-Telford, et al, , note 93, 37. In part, this is explained by education levels of the current older adult cohort. In each age group, other than those over 65, the largest proportion scores at Level 3. Level 3 is considered to be “the desired threshold for coping well in a complex knowledge society”: 37. It requires an individual to match the text and information provided or to make matches based on low-level inferences or otherwise “work” with the text. Level 3 document literacy involves, among other abilities, “integrating multiple pieces of information from one or more documents”: 16. At least low level Level 3 skills are needed to integrate one’s own information with that provided in legal information or to complete forms using one’s own information.
[313] LCO, A Framework for the Law as it Affects Older Adults, note 52, 6.
[314] LCO, A Framework for the Law as it Affects Older Adults, note 52, 157.
[315] Statistics Canada, Population, urban and rural, by province and territory (Ontario) [2011 Census], online: http://www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/demo62g-eng.htm.
[316] Statistics Canada, Population and dwelling counts, for census metropolitan areas and census agglomerations, 2011 and 2006 censuses, online: http://www12.statcan.gc.ca/census-recensement/2011/dp-pd/hlt-fst/pd-pl/Table-Tableau.cfm?LANG=Eng&T=201&S=3&O=D&RPP=150.
[317] Cohl and Thomson, note 185, 32-35.
[318] For example, in its submission on our Interim Report in this project, MAG explained that it “is developing an information program specifically for Aboriginal families [that] involves the development and translation of written materials, DVDs, an on-line interactive program and a training program”. As we have indicated, Legal Aid Ontario has also developed an Aboriginal strategy. There is also much material to assist women who have experienced domestic violence provided by many organizations involved in the legal system. These are merely examples, and we have referred to other initiatives in this Report.
[319] Nancy Webb, “Diversity and Inclusion Considerations in Family Law”, Presented at the 6th Annual Family Law Summit (May 10-11, 2012).
[320] Family Law Council, Improving the Family Law System for Clients from Culturally and Linguistically Diverse Backgrounds (Commonwealth of Australia, February 2012), online: http://www.google.ca/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CFEQFjAA&url=http%3A%2F%2Fwww.ag.gov.au%2FFamiliesAndMarriage%2FFamilyLawCouncil%2FDocuments%2FImprovingtheFamilyLawSystemforClientsfromCulturallyandLinguisticallyDiverseBackgrounds.DOC&ei=cUh0UZfACofbrAG3xIDoCA&usg=AFQjCNEm7oT3CpRtW8DbPr8SHxYdtB8-rw&bvm=bv.45512109,d.aWM.
[321] Family Law Council, Improving the Family Law System, note 320, 31.
[322] Family Law Council, Improving the Family Law System, note 320, 87.
[323] Family Law Council, Improving the Family Law System note 320, 48.
[324] Alexandre Marc, Delivering Services in Multicultural Societies (The World Bank, 2010) 22, online: http://siteresources.worldbank.org/EXTDEVDIALOGUE/Resources/537297-1265829764730/Del_Services_in_Multicultural_Societies.pdf.
[325] Marc, note 324, 40.
[326] Marc, note 324, 41.
[327] Fareen Jamal, Cultural Fluency for Family Lawyers, Presented at the 6th Annual Family Law Summit (May 10-11, 2012).
[328] Ontario Public Service Diversity, 2011 OPS Diversity Annual Report: Toward Inclusion (2011) 1 [Toward Inclusion], online: http://www.mgs.gov.on.ca/stdprodconsume/groups/content/@mgs/@aboutmin/documents/resourcelist/stdprod_088640.pdf.
[329] Toward Inclusion, note 328, 1.
[330] Shamira Madhany, “Team Nomination – Ontario: 2011 PSSDC Excellence in Public Service Delivery Award” (2011), online: http://www.iccs-isac.org/wp/library/2012/09/Ontario-team-nomination-OPS-Diversity-Office.pdf. The 17 dimensions are the following: Aboriginal status/heritage; age; care-giving responsibilities; citizenship status; disability; educational level; employment status; ethnicity; French language; gender; language; marital/family status; race; regional location; religion; sexual orientation; and socioeconomic status.
[331] LCO, A Framework for the Law as It Affects Older Adults, note 52, and A Framework for the Law as It Affects Persons with Disabilities, note 210.
[332] Ministry of Citizenship and Immigration, Domestic Violence Action Plan for Ontario (2005) 2, 3, online: http://www.women.gov.on.ca/owd_new/english/resources/publications/dvap/dvap.pdf.
[333] Aboriginal Legal Services of Toronto, online: http://www.aboriginallegal.ca.
[334] Patti MacDonald and Christa Big Canoe, Learn, Grow, Connect: Practicing Community Legal Education in a Diverse Ontario, Conference Report (February 2009) 20, online: http://yourlegalrights.on.ca/sites/conference/content/docs/ConferenceReportFinal.pdf.
[335] LCO, A Framework for the Law as it Affects Older Adults, note 52, 45; Turcotte and Schellenberg, note 310, 212-215.
[336] Armine Yalnizyan, “The Problem of Poverty Post-Recession” (Canadian Centre for Policy Alternatives: August 17, 2010) 6-7, online: www.policyalternatives.ca/publications/reports/problem-poverty-post-recession.
[337] Cohl and Thomson, note 185, 57.
[338] Birnbaum and Bala, ”Experiences of Ontario Family Litigants”, note 88.
[339] Trebilcock, note 25, 77.
[340] Translation may involve more than simply “literal” translation from English into another language, or even the recognition of idiomatic expressions; it needs also to recognize that language may have different connotations in different communities. This is a complex process, since it needs to incorporate cultural differences while also communicating information about common circumstances.
[341] Our references are to women who have experienced domestic violence because they are primarily the victims and men are primarily the perpetrators. To the extent men do experience domestic violence, it tends to be less serious and often in response to initiating abuse. Men and women in same sex relationships may be either victims or perpetrators. See, for example, University of Toronto Psychological and Counselling Services, “Abuse in Same Sex Relationships”, online: http://www.caps.utoronto.ca/Services-Offered/Assault-Counselling/abuse-in-same-sex-relationships.htm.
[342] Ontario Forms Assistant, note 97.
[343] 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, note 2, 4.
[344] Cohl and Thomson, note 185, 15, 49ff; Listening to Ontarians, note 2, 56, 5. Cohl and Thomson note that self-help is not limited to appearing in court without representation, but may be used in connection with other assistance: 49.
[345] University of Toronto Faculty of Law, Middle Income Access to Civil Justice Initiative Background Paper, note 99, 33.
[346] For a review of U.S. self-help initiatives, see Self-Represented Litigation Network, Best Practices in Court-Based Programs for the Self-Represented: Concepts, Attributes, Issues for Exploration, Examples, Contacts and Resources (2008), online: http://www.americanbar.org/content/dam/aba/migrated/legalservices/sclaid/atjresourcecenter/downloads/best_practices_7_08.authcheckdam.pdf. Information about California can be found at p. 9.
[347] The Office of the Deputy Chief Administrative Judge for Justice Initiatives, Expanding Access To Justice In New York State, (March 2009) 20ff., online: http://www.americanbar.org/content/dam/aba/migrated/legalservices/delivery/downloads/expanding_access_to_justice_in_new_york_state.authcheckdam.pdf.
[348] Best Practices in Court-Based Programs for the Self-Represented, note 346, at 4.
[349] Selfhelpsupport.org, online: http://www.selfhelpsupport.org/help/item.Resources_for_SelfRepresented_Litigants.
[350] Kathleen E O’Leary, “Lawyerless, But Not Alone: Self-Help Centers Build Better Communities” (2005) California Courts Review 14, online: http://www.courts.ca.gov/documents/CCR_05Fall_051031.pdf.
[351] Best Practices in Court-Based Programs for the Self-Represented, note 346, 8.
[352] O’Leary, note 350, 15.
[353] O’Leary, note 350, 16. The emphasis on a court-based system is perhaps not surprising given that the Judicial Council is composed of judges, a representative of the legislature and a representative of the bar and other persons related to the court system who are advisory members: California Courts, Judicial Council Members, online: http://www.courts.ca.gov/4645.htm.
[354] Best Practices in Court-Based Programs for the Self-Represented, note 346, 8.
[355] Best Practices in Court-Based Programs for the Self-Represented, note 346, 27.
[356] O’Leary, note 350, 16.
[357] Law Foundation of Ontario, Access to Justice Fund Grants Program, online: http://www.lawfoundation.on.ca/atjf/. The grant is described as follows: Community Legal Education Ontario (Toronto, ON) will conduct research to explore the value and effectiveness of public legal education services throughout the continuum of legal services delivery.
[358] Cohl and Thomson, note 185, 44.
[359] Cohl and Thomson, note 185, 44.
[360] India Rainbow Community Services of Peel, online: http://www.indiarainbow.org.
[361] See The Law Foundation of Ontario (LFO), “Connecting Communities”, online: http://www.lawfoundation.on.ca/what-we-do/the-connecting-project/connecting-communities. This was recommended by Cohl and Thomson, note 185, 66.
[362] CLEO, “Connecting Communities: Strengthening links between legal and community agencies” (June 2011), online: http://www.cleo.on.ca/_oldweb/english/pub/onpub/PDF/boardmanual/connectingrpoject.pdf.
[363] LFO, note 361.
[364] Richard Susskind, The End of Lawyers? Rethinking the Nature of Legal Services (Oxford: Oxford University Press, 2008) 235.
[365] Chief Justice Beverley McLachlin, Speech to the Council of Canadian Bar Association (August 2011), online: http://www.ipolitics.ca/2011/08/16/beverley-mclachlin-address-to-the-council-of-the-canadian-bar-association/.
[366] McLachlin, note 365.
[367] The World Justice Project, Rule of Law Index 2012-2013, Canada, online: http://worldjusticeproject.org/country/canada. The methodology for reaching the “score” is briefly described in The World Justice Project, “Methodology”, online: http://worldjusticeproject.org/methodology; and in detail in Juan Carlos Botera and Alejandro Ponce, “Measuring the Rule of Law” (November 30, 2011), online: SSRN, http://ssrn.com/abstract=1966257 or http://dx.doi.org/10.2139/ssrn.1966257. Chief Justice McLachlin is an Honorary Chair of the Project.
[368] Samreen Beg and Lorne Sossin, “Should Legal Services be Unbundled?” in Michael Trebilcock, et al, note 49 193, 197.
[369] E-mail from Diana Miles to the LCO (June 26, 2012).
[370] Dan Pinnington, “Unbundled legal services: pitfalls to avoid”, LawPRO Magazine 11:1 (January 2012) 6, 7, online: http://www.practicepro.ca/LawPROmag/Unbundled_Legal_Services.pdf.
[371] Legal Aid Services Act, 1998, S.O. 1998, c.26, O.Reg. 106/99. See ss.24(1) and (2) with respect to family law duty counsel and their functions.
[372] Legal Aid Services Act, 1998, note 371, s.1.
[373] These documents are “Financial Eligibility Criteria for Certificates: Policies and Procedures Manual”, “Duty Counsel: Financial Eligibility Test” and “CFC Policy Guidelines on Financial Eligibility” (this last for clinics): Legal Aid Services Act, 1998, note 371, O.Reg. 107/99. See ss.1(2)(3)(4) of the Regulation.
[374] Trebilcock, note 25, 72.
[375] Statistics Canada, “Low income cut-offs” (June 3, 2012), online: http://www.statcan.gc.ca/pub/75f0002m/2009002/s2-eng.htm.
[376] Office of the Auditor General, 2011 Annual Report (Queen’s Printer Ontario, 2011) 204, online: http://www.auditor.on.ca/en/reports_en/en11/2011ar_en.pdf.
[377] Legal Aid Ontario, Power point presentation prepared for Legal Aid Ontario’s Financial Eligibility Study Group (LAO’s policy department, March 6, 2012).
[378] Legal Aid Ontario, Power point presentation to Financial Eligibility Study Group (30 May 2012).
[379] JusticeNet, online: http://www.justicenet.ca.
[380] Law Society of Manitoba, “Family Law Access Centre,” online: http://www.lawsociety.mb.ca/for-the-public/family-law-access-centre.
[381] Noel Semple, “Regulatory Reform for Access to Justice”, Paper prepared for the National Family Law Program (July 16, 2012). Semple refers to the launching of a “legal services operation” by the Co-operative Group Limited, offering internet, toll free telephone lines and storefront office services. It offers some family law services: http://www.co-operative.coop/legalservices/family-and-relationships. Co-operative Legal Services Limited is licensed by the Solicitors Regulation Authority: http://www.sra.org.uk/solicitors/firm-based-authorisation/abs-register/567391.page. Although the “co-op” has been in existence in England for many years, with roots in the 1800s; providing services such as grocery stores and financial services, the provision of legal services is a far more recent development.
[382] Semple, “Regulatory Reform for Access to Justice, note 381, 25-26..
[383] Sujit Choudry, Michael Trebilcock and James Wilson, “Growing Legal Aid Ontario into the Midde Class: A Proposal for Legal Expenses Insurance”, Trebilcock, et al, note 49, 385 and Paul A. Vayda and Stephen B. Ginsberg, “Legal Services Plans: Crucial-Time Access to Lawyers and the Case for a Public-Private Partnership”, Trebilcock, et al, note 49, 246. Also see CBA PracticeLink, Sheldon Levy, “Meet the legal service delivery vehicle of the 21st century: Judicare”, online: http://www.cba.org/CBA/practicelink/National_articles/3.aspx; Luis Millan, “Legal insurance: While Europeans have embraced the concept, Canadians remain cool to pre-paid legal services”, The Lawyers Weekly (May 2009), online: http://www.lawyersweekly.ca/index.php?section=article&articleid=908; Michael McKiernan, “Legal-costs insurance needs official boost, says longtime provider”, Law Times (July 18, 2010), online: http://www.lawtimesnews.com/201007197223/Headline-News/Legal-costs-insurance-needs-official-boost-says-longtime-provider. This last article suggests that the Law Society of Upper Canada believes that legal insurance might be a way to provide legal services more affordably.
[384] For example, legal expense insurance (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; however, family law is usually at best only partially covered or covered at a very high premium. 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).
[385] CAW Legal Services Plan, Benefits Schedule, online: http://www.cawlsp.com/BENEFIT%20SCHEDULE%202008.pdf. (Although dated 2008, the Benefits Schedule is current to January 2011.)
[386] In Quebec, it has been promoted by the Barreau du Québec, the legal regulator: Barreau du Québec, “L’Assurance juridique”, online: http://www.legalinsurancebarreau.com/protection/situations/index.html. It does not appear to cover family law matters.
[387] Legal Shield, a legal services plan available in Ontario does not cover family matters: Legal Shield, online: https://www.legalshield.com/. DAS Canada, a world-wide provider of pre-paid legal insurance, including in Canada, offers only very limited family law advice: http://www.das.ca/Products-Services/How-We-Can-Help.aspx; the website explains, “Although family law is not covered in any policies, DASliving policyholders can receive legal advice regarding family law matters from the Legal Advice Helpline”, online: http://www.das.ca/Products-Services/Frequently-Asked-Questions.aspx.
[388] Beginning in licensing year 2014-15, law school graduates in Ontario may article for ten months or complete a Law Practice Program composed of the four month LPP and a four month co-operative work placement (the latter option is being piloted for three years). Law Society of Ontario (LSUC), Articling Task Force Final Report (October 25, 2012), online: http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147489848. Convocation approved the hybrid pilot in November 2012: Law Society of Upper Canada, Convocation Decisions (November 2012), online: http://www.lsuc.on.ca/with.aspx?id=2147490043.
[389] LCO conversation with Nikki Gershbain and Lisa Cirillo (April 17, 2011). See Pro Bono Students Canada, Family Law Project (FLP) by Province, online: http://www.probonostudents.ca/programs/court-and-tribunal/flp-by-province. The students’ work in New Brunswick is supervised by volunteer private bar lawyers. We note, however, that the FLP is not partnered with legal aid in New Brunswick or other “official” body.
[390] Law Society of Upper Canada, Articling Task Force Final Report, note 388, 3.
[391] Vickrey, et al, note 131, 96-98.
[392] The LCO has issued a report on law school curriculum modules designed for teaching and learning about violence against women, recognizing that all lawyers should be aware of the issues this raises regardless of the area of law in which they practice. Lawyers, and consequently, students may find any client has been a victim of domestic violence or has been accused of committing it, thus potentially affecting how the lawyer or student can most effectively interact with or represent the client. See Law Commission of Ontario, Curriculum Modules in Ontario Law Schools: A Framework for Teaching about Violence against Women (August 2012), online: http://www.lco-cdo.org/en/violence-against-women-modules.
[393] Law Society of Upper Canada, Treasurer’s Report to Convocation: Update on the Law Society’s Legal Needs Analysis (April 26, 2012) (Update on Legal Needs Analysis), 3, online: http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147487345.
[394] Update on Legal Needs Analysis, note 393, 3-4.
[395] Law Society Act, R.S.O. 1990, c. L 8 s 63.1.
[396] Law Society of Upper Canada Policy Secretariat, Report to Convocation: Treasurer’s Report (26 April 2012) 2, online: http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147487345.
[397] Law Society of Ontario, Report to the Attorney General of Ontario Pursuant to Section 63.1 of the Law Society Act (June 2012) (Paralegal Report), online: http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147488010.
[398] LSUC, Paralegal Report, note 397, 26, 27.
[399] Law Society of Upper Canada, “David Morris selected to lead next phase of paralegal regulation review”, online: http://www.lsuc.on.ca/newsarchives.aspx?id=2147485737&cid=2147489388.
[400] Report to the Attorney General of Ontario: Report of Appointee’s Five-Year Review of Paralegal Regulation in Ontario Pursuant to Section 63.1 of the Law Society Act (November 2012) 10 (Appointee’s Paralegal Report), online: http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/paralegal_review/Morris_five_year_review-ENG.pdf.
[401] Appointee’s Paralegal Report, note 400, 19.
[402] AJEFO Conference, note 86.
[403] Law Society of Upper Canada, “Choosing the Right Legal Professional,” online: http://www.lsuc.on.ca/with.aspx?id=433.
[404] On this point, also see Semple, “Regulatory Reform for Access to Justice”, note 381.
[405] Semple, “Regulatory Reform for Access to Justice”, note 381, 23.
[406] André Picard, “Health‐care system needs a front door,” The Globe and Mail (November 8, 2011).
[407] Picard, note 406.
[408] Dorothy Scott, “Inter-organizational collaboration in family-centred practice: A framework for analysis and action” (2005) 58:2 Austl. Social Work 132, 132
[409] Macfarlane, The New Lawyer, note 288, 237.
[410] John Marriott and Ann L. Mable, “Integration: Follow Your Instincts, Ignore he Politics, and Keep your Eyes in the Ideal Model” 89:5 Canadian Journal of Public Health Volume 293.
[411] Ontario Medical Association, The Ontario Physical Shortage 2005: Seeds of progress but resource crisis deepening, New OMA recommendations on Physical Workforce Policy and Planning. 2005, cited in Proceedings Report for the Summit on Advancing Interprofessional Education and Practice (June 14 and 5, 2006) 10, online: http://www.healthforceontario.ca/upload/en/whatishfo/summitproceedingsreportfinal.pdf [Summit Report].
[412] Peggy Leatt, George H. Pink and C. David Naylor, “Integrated Delivery Systems: Has Their Time Come In Canada?”, 154 (1996) CMAJ 803, 804, online: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1487797/pdf/cmaj00090-0061.pdf. The authors were specifically referring to the organization of different provincial ministries responsible for different aspects of health care.
[413] Leatt, et al, note 412, 804.
[414] Peter Morgan and Lynne Cohen, “Community health centres: Do they pose a threat to fee-for-service medicine?” (1991) 144 Canadian Medical Association Journal 745, 745-747, cited in Jacobs and Jacobs, note 37, 17.
[415] The College of Physicians and Surgeons, “Fostering Collaborative Relationships with Nurse Practitioners” (May 2003), online: http://www.cpso.on.ca/policies/positions/default.aspx?id=1742 cited in Jacobs and Jacobs, note 37, 53. Also see a similar statement on the College of Physicians and Surgeons’ website with respect to midwives: The College of Physicians and Surgeons, “Position statement: Joint statement from the College and the College of Midwives of Ontario: CPSO and CMO Statement on Interprofessional Collaboration” (June 2010), online: http://www.cpso.on.ca/policies/positions/default.aspx?id=4152.
[416] College of Midwives of Ontario, “College of Midwives of Ontario Statement on Interprofessional Care” (November 2007), online: http://www.cmo.on.ca/downloads/IPC%20Statement%20Jan%2008.pdf.
[417] Health Canada, 2003 First Ministers Accord on Health Care Renewal, online: http://www.hc-sc.gc.ca/hcs-sss/delivery-prestation/fptcollab/2003accord/index-eng.php. Also see Summit Report, note 411.
[418] Summit Report, note 411. The summit was organized by the Ontario Ministry of Health and Long Term Care together with the Office of Interprofessional Education at the University of Toronto and the Ministry of Training, Colleges and Universities. The participants in the Summit included leaders and workers in health and social services.
[419] Interprofessional Care Steering Committee, Interprofessional Care: A Blueprint for Action in Ontario (July 2007), online: http://www.healthforceontario.ca/UserFiles/file/PolicymakersResearchers/ipc-blueprint-july-2007-en.pdf.
[420] Interprofessional Care Strategic Implementation Committee, Final Report: Implementing Interprofessional Care in Ontario (May 2010) 4 [Implementing Interprofessional Care in Ontario], online: http://www.healthforceontario.ca/UserFiles/file/PolicymakersResearchers/ipc-final-report-may-2010-en.pdf.
[421] Ontario Health Human Resources Network, “New report sheds light on provincial interprofessional care initiatives,” online: http://rorrhs-ohhrrn.ca/index.php?option=com_content&view=article&id=56:new-report-sheds-light-on-provincial-interprofessional-care-initiatives&catid=10:latest-news&Itemid=8&lang=en.
[422] George Brown’s Centre for Health Sciences, for example, offers an interprofessional program; it does not, of course, include students training to be physicians: George Brown College, Interprofessional Education IPE in Action, online: http://www.georgebrown.ca/ipe/in_action.aspx.
[423] Implementing Interprofessional Care in Ontario, note 420, 19.
[424] Implementing Interprofessional Care in Ontario, note 420.
[425] An Act to amend various Acts related to regulated health professions and certain other Acts, S.O. 2009, c.26.
[426] Queen’s University, Office of Interprofessional Education & Practice: Advancing Health Care through Collaborative Learning (June 2012), online: http://healthsci.queensu.ca/assets/oipep/Quarterly_Reports/OIPEP-QReport-June-2012-Final.pdf.
[427] Choudry, et al, note 383, 390.
[428] Jean Sorensen, “Medical-legal partnership makes community RICHER” (July 2012) Canadian Lawyer 11, online: www.canadianlawyermag.com. As of January 2013, the RICHER website at the BC Children’s Hospital does not include reference to this service: http://www.bcchildrens.ca/AboutUs/default.htm.
[429] PBLO, LawHelpOntario.org, “Children’s Hospitals Projects”, online: http://www.lawhelpontario.org/childrenshospitals.
[430] While all the “centres” would provide legal and other related services and would undertake processes to ensure as much as possible that users would take the path that would most effectively resolve their problems or respond (for example) to a high conflict dispute, the centres might differ to some extent in offering specific services relevant to a particular ethnic or cultural community, for example.
[431] South Ottawa Community Legal Services, Connecting Region/Ottawa Report (March 2011) [Connecting Region Report], online: http://www.plelearningexchange.ca/wp-content/uploads/2012/04/Connecting-Ottawa.pdf. As of September 2012, the Connecting Ottawa project had hired staff and was anticipating its own website: South Ottawa Community Legal Services, News, online: http://www.socls.org/en/about_us.html#law-foundation-grant.
[432] Connecting Region Report, note 431.
[433] Connecting Region Report, note 431.
[434] Casey Gwinn et al, “The Family Justice Center Collaborative Model” (2007) 27:1 St. Louis U. Pub. L. Rev. 79, 93 [“The Family Justice Center Collaborative Model”].
[435] “The Family Justice Center Collaborative Model”, note 434, 85. A loose collaboration of organizations including the San Diego police, the City Attorney’s Domestic Violence Unit, and the San Diego Domestic Violence Council received City approval for the idea, as well as a $500,000 Challenge Grant from the California Endowment (a private health foundation).
[436] For an account of the development of the FJC movement, see Casey Gwinn and Gael Strack, Hope for Hurting Families: Creating Family Justice Centers Across America (California: Volcano Press, 2006)..
[437] San Diego Family Justice Center, online: http://www.sandiego.gov/sandiegofamilyjusticecenter/.
[438] Family Violence Project of Waterloo Region, note 202.
[439] DRIVEN, note 202.
[440] Safe Centre of Peel: Collaborative Assistance for Victims of Abuse and Violence, online: http://www.familyjusticecenter.org/7.%20Family%20Justice%20Centers%20-%20New/FJC%20Profiles/Canada%20FJC%20-%20Safe%20Centre%20of%20Peel.pdf.
[441] Gwinn and Strack, note 436.
[442] Catholic Family Services Peel-Dufferin, 2011 Annual Report [CFSPD 2011 Annual Report], online: http://www.cfspd.com/Annual%20Report%202011.pdf. The funding was raised to include CFSPD’s head office.
[443] The service providers included Associated Youth Services, Catholic Cross Cultural Services, Crown Attorney’s Office of Peel, Dufferin Peel Catholic District School Board, Family Education Centre, India Rainbow Community Services, Legal Aid Ontario, Peel Committee Against Woman Abuse, Peel Children’s Aid Society, Peel Committee on Sexual Assault, Peel Regional Police, Salvation Army Family Life Resource Centre, Trillium Health Centre Sexual Assault Care and Domestic Violence Services, Victim Services of Peel and Victim Witness Assistance Program: Raveena Aulakh, “Peel eyes one-stop centre to tackle domestic violence”, Toronto Star (November 21, 2010), online: http://www.thestar.com/news/gta/2010/11/21/peel_eyes_onestop_centre_to_tackle_domestic_violence.html.
[444] House of Representatives Standing Committee on Family and Community Affairs, Every Picture Tells a Story (Canberra: Parliament of the Commonwealth of Australia, 29 December 2003). See “About Family Relationships Centres”, online: http://www.familyrelationships.gov.au/Services/FRC/Pages/default.aspx.
[445] Rae Kaspiew, et al, Evaluation of the 2006 Family Law Reforms (Australian Institute of Family Studies, December 2009).
[446] Australian Government, A New Family Law System – Government Response to Every Picture Tells a Story, (Commonwealth of Australia, June 2005) [New Family Law System], online: http://www.fahcsia.gov.au/our-responsibilities/families-and-children/publications-articles/a-new-family-law-system-government-response-to-every-picture-tells-a-story.
[447] New Family Law System, note 446. Ministerial responsibility for the FRCs is shared between the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) and the Attorney General’s Department (AGD). $188.5AUDm (AUD) was approximately $197.5m (CAD) at the time of writing. All financial references in the discussion of FRCs are to Australian dollars. There was a subsequent, albeit relatively insignificant cut to this amount.
[448] John Butcher and Benoit Pierre Freyens, “Competition and Collaboration in the Contracting of Family Relationship Centres” (2011) 70:1 Australian Journal of Public Administration 15, 18, 23.
[449] Family dispute resolution is offered by FRCs only where parenting issues exist. Matters that involve only property issues are referred to external dispute resolution services.
[450] For a fuller discussion of the types of services that may be offered at FRCs, see Patrick Parkinson, “Parenting after Separation – The Process of Dispute Resolution in Australia”, Sydney Law School Legal Studies Research Paper No.10/115 (November 2010), 14-22, online: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1702639##.
[451] Institute of Child Protection Studies, Evaluation of the Supporting Children after Separation Program and Post Separation: Cooperative Parenting Programs (Australian Catholic University, June 2011), 10, online: http://www.ag.gov.au/FamiliesAndMarriage/Families/FamilyLawSystem/Documents/Archived%20family%20law%20publications/Evaluation%20of%20the%20Supporting%20Children%20After%20Separation%20Program%20and%20Post%20Separation%20Cooperative%20Parenting%20%20Accessible.pdf.
[452] Georgina Dimopoulos, “Gateways, Gatekeepers or Guiding Hands? The Relationship between Family Relationship Centres and Legal Practitioners in Case Management and the Court Process” (2010) 24 Australian Journal of Family Law 176, 179.
[453] Lawrie Moloney, et al, Evaluation of the Family Relationship Centre legal assistance partnerships program Final report (March 2011), online: http://www.ag.gov.au/FamiliesAndMarriage/Families/FamilyLawSystem/Documents/Archived%20family%20law%20publications/Evaluation%20of%20the%20Family%20Relationship%20Centre%20and%20Legal%20Assistance%20Services%20Partnerships%20-%20Accessible%20%282%29.pdf.
[454] Catherine Caruana, “Roundup of Developments in Family Law” (2011) Family Matters No. 86, online: http://www.aifs.gov.au/institute/pubs/fm2011/fm86/fm86-fl.html.
[455] B.C. Justice Review Task Force, A New Justice System for Families and Children: Report of the Family Justice Reform Working Group to the Justice Review Task Force (May 2005) [New Justice System], online: http://www.bcjusticereview.org/working_groups/family_justice/final_05_05.pdf.
[456] New Justice System, note 455, 37-38.
[457] New Justice System, note 455, 24.
[458] New Justice System, note 455, 33.
[459] New Justice System, note 455, 35-36.
[460] Focus Consultants, Nanaimo Family Justice Services Centre Implementation Phase Evaluation (September 2008), 1 [Nanaimo Evaluation 2008], online: http://www.ag.gov.bc.ca/justice-reform-initiatives/publications/pdf/FJSCFinalReport.pdf.
[461] Nanaimo Evaluation 2008, note 460, 2.
[462] Nanaimo Evaluation 2008, note 460.
[463] Gayla Reid and John Malcolmson, Civil Hub Research Project: Needs Mapping (Legal Services Society, June 2007), online: http://www.ag.gov.bc.ca/justice-reform-initiatives/publications/pdf/CivilJusticeHub.pdf.
[464] British Columbia Ministry of Justice, “Justice Access Centre”, online: http://www.ag.gov.bc.ca/justice-access-centre/.
[465] Butler, note 10.
[466] Government of Ontario, The Partnership Project: An Ontario Government Strategy to Create a Stronger Partnership with the Not-For-Profit Sector (2011), 4 [Partnership Project Report], online: http://www.citizenship.gov.on.ca/english/keyinitiatives/partnership/part_project.pdf.
[467] Partnership Project Report, note 466, 5.
[468] Partnership Project Report, note 466, 8.
[469] Ontario Ministry of Citizenship and Immigration, “Partnership Project”, online: http://www.citizenship.gov.on.ca/english/pp/faqs.shtml.
[470] Ontario Trillium Foundation, “Strengthening Collaboration in Ontario’s Not-for-profit Sector” (2011), online: http://www.otf.ca/en/knowledgeSharingCentre/resources/OTF_Collaboration_Report.pdf
[471] Ontario Trillium Foundation, “The Future Fund” (2011), online: http://www.otf.ca/en/applyForaGrant/future_fund.asp.
[472] Commission on the Reform of Ontario’s Public Services, Public Services for Ontarians: A Path to Sustainability and Excellence (2012) [Drummond Report], online: http://www.fin.gov.on.ca/en/reformcommission/chapters/report.pdf.
[473] Michael J. Wolf, “Collaborative Technology Improves Access to Justice” (2012) 15:3 N.Y.U.J. Legis. & Pub. Pol’y 759, 760.
[474] Jacobs and Jacobs, note 37.
[475] Law Society of Upper Canada, Rules of Professional Conduct, note 122, Rule 6.10. The commentary to Rule 2.01 provides as follows: In a multi-discipline practice, a lawyer must be particularly alert to ensure that the client understands that he or she is receiving legal advice from a lawyer supplemented by the services of a non-licensee. If other advice or service is sought from non-licensee members of the firm, it must be sought and provided independently of and outside the scope of the retainer for the provision of legal services and will be subject to the constraints outlined in the relevant by-laws and regulations governing multi-discipline practices. In particular, the lawyer should ensure that such advice or service of non-licensees is provided from a location separate from the premises of the multi-discipline practice.
[476] Law Society of Upper Canada, By-Law 7, Part III, online: http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147485808.
[477] Child and Family Services Act, note 284, s.72. This section deals with a duty to report a child in need of protection and applies to anyone performing “professional or official duties with respect to children” (s.72(1)).
[478] Child and Family Services Act, note 284, s.72(8).
[479] Macfarlane, note 288, 238.
[480] LCO telephone discussion with Shelina Jeshani on April 13, 2012
[481] Family Service Ontario, online: http://www.familyserviceontario.org/content/members-services. Other services include an annual conference, regional executive director meetings, EAP adminstration for agency staff,government advocacy and accreditation.
[482] Family Service Ontario, online: http://www.familyserviceontario.org/content/accreditation-0.
[483] Legal Aid Ontario, “Legal aid transforms services with new family law centre” (January 19, 2010), online: http://www.legalaid.on.ca/en/news/newsarchive/1001-19_northyork.asp. The Greater Toronto Region covers North York, Scarborough, Etobicoke and Toronto.
[484] An example of this in a community context is Immigrant Women Services Ottawa, which provides crisis intervention to immigrant and visible minority women fleeing abuse, a transitional housing and support program, services for children who have witnessed violence against women in their home, a wide variety of settlement and integration services, including employment services, and translation and interpretation services. WSO also provides cultural training. These services are offered in the same building (based on a visit by the LCO). See note 194.
[485] Other jurisdictions also have civil justice access centres, such as the “Counter” system in the Netherlands or the Citizens Advice Bureaux in Britain. In the Netherlands, Service Counters were introduced between 2003 and 2006. They operate 30 physical counters throughout the country, located so that every citizen can access a Counter within one hour of public transit: Legal Aid Board, Legal Aid in the Netherlands: A Broad Outline, 8, online: http://www.rvr.org/binaries/rbv-downloads/brochures/def-opmaakvoorsel-brochure-legal-aid–rvr90265-_ve.pdf. Also see Peter J. M. van den Biggelaar, “The Legal Services Counter: Lessons Learned”, International Legal Aid Group Conference paper (2007), online: http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/Antwerpen_2007/Conference_Papers/The_Legal_Services_Counter_Lessons_Learned.pdf. That size of system would not be sufficient to meet the needs of a province the size of Ontario. The UK Citizens Advice Service offers services out of over 3,500 bureaux, operated by 382 different charities. The Citizens Advice Service train the bureaux, which in turn provide them with data the Service uses to track widespread problems deserving national action. They employ 7,000 staff and rely on 21,500 volunteers: Citizens Advice Bureau, Citizens Advice: Introduction to the Service (2010-2011), online: www.citizensadvice.org.uk/citizens_advice_introduction_to_the_service_2010_11.pdf. Such a service would be fiscally difficult to establish.
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