III. Considerations in Designing a Family Law Project

III. Considerations in Designing a Family Law Project2017-08-30T18:51:46+00:00

Before describing two family law project possibilities for the LCO in the next section, this section will explain three significant considerations that need to be taken into account when designing a law reform project for the LCO, all raised during the Roundtable. The first consideration is the necessity to adopt an intersectional analytical framework. The second one is the pragmatic concern with available resources, efficiency and effectiveness. Finally, the last consideration is the role of the LCO in the community.

A. Intersectional Analytical Framework

In addition to proposing reform project possibilities for the LCO, Roundtable participants provided insight into analytical approaches that should be part of any LCO project. Key considerations came out of these discussions. These considerations are particularly important for the LCO in terms of fulfilling its mandate of increasing access to justice. They are also related to the LCO core values of diversity and inclusiveness mentioned at the beginning of this paper. This section explores some of the elements of an intersectional analytical framework that the LCO should adopt in any of its projects, with reference to specific family law examples provided during the Roundtable.

1. Cultural Competency

Roundtable participants expressed concern about cultural competency within the family justice system. Lack of cultural competency disproportionately impacts Aboriginal communities and members of various racialized groups, especially non white and non English speaking groups. For example, a Roundtable participant pointed out that an Aboriginal person who is involved in a family dispute might not disclose certain types of information due to cultural norms or previous experience with the legal system. Actors in the family justice system should be trained to ask appropriate questions with respect to such norms and the necessity of developing a relationship of trust.

. Gender Competency

Participants also noted a lack of gender competency within the family justice system and expressed dissatisfaction with the processing of domestic violence cases, which problems disproportionately affect women. Participants identified the issue of children’s contact with parents whose violent behaviour is a major issue. They also mentioned that issues related to violence were often not addressed properly because female parties were not appropriately represented. These concerns have already been the object of numerous studies. However, according to participants, in practice, much effort remains to be done in order to improve service across gender lines within the family justice system.

3. Linguistic Competency

Related to cultural competency is linguistic competency. Roundtable participants had different linguistic backgrounds or were connected to various linguistic groups including English, French, Aboriginal and other languages. Language is especially important in the context of family justice. As much as English may be the main language of business, it is not necessarily the language of the family. Increased sensitivity to the issues of linguistic competency and access to justice is therefore appropriate in this area.

French is the second largest linguistic groups in Ontario after English and represents 4.8% of the Ontario population according to the 2006 Statistics Canada census.[10] The Ontario francophone population is also the largest in Canada, outside of Quebec.[11] Although many francophones live in Toronto and Ottawa, many live in other locations in Ontario. For example, a francophone from Sudbury participated in the Roundtable. Despite this large francophone presence across Ontario and the fact that Ontario francophones have specific legal rights in Ontario,[12] French language services in the area of family justice are lacking in Ontario. In the Greater Toronto Area and in Sudbury, there are no shelters for female victims of domestic violence with staff who can deliver services in French, and in Ottawa, there are only two.[13] Linguistic competency in Ontario would therefore require specific attention to French language.

Although the Roundtable was held in English, the LCO has a commitment to publishing its main documents in both French and English and the present consultation process will be conducted in both languages.

In addition to the historical presence of the French language, the province of Ontario has an even longer history of disappearing Aboriginal languages due to colonialism. Cree and Inuktituk are currently the most spoken Aboriginal languages in the province.[14] The lack of supports to revive Aboriginal languages through intergenerational connections is a barrier to developing both cultural and linguistic competency in the delivery of family law services to Aboriginal peoples, another area to which the LCO should pay attention.

In addition to this linguistic diversity, Ontario has a long history of immigration, which resulted in Toronto being one of the cities where the highest number of languages is spoken around the world.[15] Many NGOs and community organizations respond to the Ontario population in their first language. Especially when it comes to family issues, access to justice for family members who speak other languages than English and who do not all have the same level of English language skills is crucial. Ontarians must not let linguistic barriers perpetuate damaging family dynamics such as family violence.

People who are more comfortable in other languages than English and who live in smaller centres than Toronto have great difficulty obtaining family justice services. The Family Law Education for Women project is an example of an initiative that helps disseminate plain language family law information in different languages.[16] The Linguistic and Rural Access to Justice Project of the Law Foundation of Ontario is another example of a project that aims at improving access to legal information and services to people who speak another language than English and French, as well as to people living in rural and remote areas of Ontario.[17] These projects provide the LCO with models on how to take linguistic considerations into account.

Although the LCO does not have the capacity to offer multi-lingual consultation processes, it can nevertheless take the linguistic reality described in this subsection into account in thinking about family justice processes and help develop linguistic competency in Ontario.

4. Class

In addition to linguistic, race and gender analysis, discussions within the diverse group that was present around the table made clear that the family justice system does not currently respond properly and equitably to all users across class divides. Some users of the family justice system are fighting over property division, whereas others who do not own any significant assets are fighting to have a foot in the door of the family justice system to solve issues related to child custody, for example. Among disadvantaged groups, Aboriginal peoples as well as people who live in remote areas of Ontario have a difficult time, if any opportunity at all, moving through the system. In addition, advantaged groups have the luxury of buying private family justice services when they are not satisfied with the public system. A participant also raised the unfairness of forcing low income people into mandatory dispute resolution mechanisms. As a result of these inequalities, problems with the family justice system impact advantaged and disadvantaged groups differently.

The Family Roundtable was helpful in terms of bringing together representatives of a range of more or less economically advantaged groups, although not of differently economically placed system users. Discussions revealed that more effort is needed within the family justice system in order to have meaningful exchanges across profound class differences. For example, participants mentioned that the LCO should examine the following topics:

· links between custody, child protection and the social assistance regime;

· inappropriately low support orders made in favour of women on social assistance;

· custody issues for low income parents; and,

· revisiting the Family Responsibility Office[18] system to avoid results such as removing a parent’s main source of income, a trucker’s license for example.

Through on-going consultation, the LCO hopes to continue building bridges between these different groups in order to attempt to respond to their concerns and reduce class barriers to the justice system.

At the very least, the Roundtable discussions around class issues made clear that, in any of its projects, the LCO would need to start with the assumption that the Ontario population has unequal access to and power within the family justice system. This inequality results from many factors but very importantly from economic power differences. The LCO project will focus on finding better ways to enhance access to justice in a practical way, pragmatism being an important LCO value.[19]

5. Aboriginal Communities

It is interesting to note that many aspects of the intersectional analysis described in this paper relate to Aboriginal peoples, including cultural, gender, linguistic competency; class and the situation of people living in rural and remote areas. It is therefore important to respond to the specific needs of Aboriginal peoples.

Roundtable participants pointed out that both Aboriginal women and men were disproportionately involved in the family and criminal justice systems. Participants pointed out that not enough has been done in terms of developing dispute resolution mechanisms that are acceptable amongst Aboriginal communities. Some discussed the possibility of developing a specific and distinct dispute resolution system for these communities. The example of tribal courts in the United States was mentioned. Others explained that people on reserve were so busy with child protection issues that they did not want to apply to Legal Aid Ontario. Council or band representatives, people with the appropriate cultural background, and people, who may not be Aboriginal but understand the issues, should be more available and accessible to help solve family disputes.

6. Lesbian, Gay, Bisexual, Transgendered, Queer and Intersexed Communities

Roundtable participants raised issues related to lesbian, gay, bisexual, transgendered, queer and intersexed (LGBTQI) communities. These issues revolved mainly around LGBTQI persons’ rights as parents and the use of reproductive technology. However, in any chosen project, the LCO would need to take into account the various family law models that are present within LGBTQI communities, as well as the difficulties that LGBTQI communities face within the family justice system.

7. Disability

Disability issues were also raised during the Roundtable. Some of these issues related to child protection. For example, a participant explained that the “best interest of child” test often resulted in disabled women losing their children. It was also mentioned that people living with a disability are not all aware of their rights and of ways to represent their needs. The family justice system is not adapted to various levels of ability. One important question that was raised by a representative of a group working on disability issues was that LCO projects should constantly ask who is not around the table and whose needs have been forgotten. The LCO is currently working on a project related to challenges posed by the system to persons with disabilities; however, this does not mean that other projects should not take into account disability issues, as appropriate in developing a framework and in specific contexts addressed by the project.[20]

8. Rural and Remote Areas

Ontarians living in rural or remote communities face unique challenges in relation to family justice. These challenges are multiple and specific, due to differences in rural/urban as well as northern/southern environments. For example, a representative from an Aboriginal group described the situation of lawyers and judges who fly to remote northern communities to hear cases. This participant mentioned that these professionals all fly in the same plane, which jeopardises their impartiality. In addition, because they fly to these communities every three or six months, they are disconnected from the reality of the communities they are supposed to serve. In addition, due to time constraints, it is not always possible to present motions and do case conferences. Time limitations mean that steps in the family justice process are sometimes missed. In the face of such a scenario, it is understandable that rural and remote communities question the legitimacy of the family justice system.

Roundtable participants mentioned that it is difficult for system users who have complex needs related to more than one area of the law, family and immigration law for example, to obtain legal services outside large urban centers. Initiatives such as the Linguistic and Rural Access to Justice Project of the Law Foundation of Ontario, described in the linguistic competency section above, help enhance access to justice for these people. This is a good example that the LCO can follow.

9. Conclusion

The various considerations mentioned in this paper are only a few of the criteria that must be part of any LCO project. They represent the considerations that were most present during Roundtable discussions. However, other considerations such as literacy, education and age, for example, are significant in the area of family law. It will not be possible to explore all relevant factors in this paper but it is worth noting that the LCO is currently conducting research related to older adults and, as mentioned above, disability issues. There may be crossovers between these various LCO projects.

B. Available Resources, Efficiency and Effectiveness

Among themes that kept coming back in the discussion, Roundtable participants pointed out that the family justice system lacks resources and that existing resources are not used in the most efficient and effective way, which does not help problem-solving. For example, participants noted a significant increase in unrepresented litigants, which is partly due to the insufficient Legal Aid[21] resources in the area of family law and which increases court expenses. The large majority of participants were not optimistic about the likelihood of increased resources and wanted the LCO to take on a doable project in the circumstances, which is consistent with the LCO value of pragmatism.

Participants also mentioned efficiency and effectiveness problems were barriers to the improvement of the system. Such problems create delays, system fragmentation and role confusion. The impact of these problems is not only felt by those who work within this system but also by those this system is supposed to serve.

Another significant consideration in this area is the resources available to the LCO in undertaking projects. The LCO has a limited number of staff, contract researchers and financial resources. It has the capacity to produce official documents in English and French, and may consider occasionally publishing documents in other languages. It is situated in Toronto and cannot ensure a regular in-person presence across Ontario. Currently, the LCO has the capacity to take on a multi-year project in the area of family law. It has the resources to conduct research and explore problems that, although urgent to solve, may require further research. It is therefore important to consider these limits in thinking about a choice of family law project for the LCO. Roundtable participants agreed that the LCO should not take on a project that is beyond its capacity.

The LCO will not be able to resolve funding, efficiency and effectiveness problems within the family justice system on its own. However, as participants stated, some simple measures, such as better use of technology and communication tools, may be possible to implement and make a difference. Better use of communication technology may benefit groups such as people living with a mobility related disability for example. The LCO can take this consideration into account in its research, recommendations and especially in its consultation process.

B. The LCO’s Role

As mentioned at the beginning of this paper, thinking about project options for the LCO requires keeping in mind the LCO’s mandate and role in the community. The Family Law Roundtable was an opportunity to further clarify the role of the LCO.

As an independent body, the LCO has a complementary role to other social actors. In considering projects, the LCO takes into account what other social actors are currently focussing on in terms of family law reform in order to avoid duplication and make the best use of its resources. As expressed in the LCO mandate, the LCO is committed to selecting areas for study that are underserved by other research.[22] This section describes other family law initiatives that are taking place in Ontario today as well as considerations related to research and consultation methodology that were pointed out by Roundtable participants.

1. A Second Family Law Project for the LCO

Tthe LCO has already undertaken a project in the area of family law, which examined the division of pensions upon marital breakdown.[23] Some of the LCO recommendations in this area have been adopted as part of a newly introduced Ontario bill, Bill 133 An Act to amend various Acts in relation to certain family law matters and to repeal the Domestic Violence Protection Act, 2000.[24] This particular project focused on a highly technical substantive family property law issue and applied primarily to married persons. The next LCO family law project could take the LCO in a different direction, focussing as much on common law and married couples, as on single parents and children.

2. Supplementing Current Family Law Initiatives in Ontario

Currently in Ontario, a number of initiatives in the area of family law are worth noting. As mentioned above, the Ontario government introduced Bill 133 on November 24, 2008. In addition to pension law reform, this bill proposes changes regarding the possibility of a child’s name change as a result of declarations of maternity or paternity, the relationship between child custody and access orders and restraining orders, restraining orders, child custody applications by non parents, the exclusion of debts related to the acquisition or significant improvement of a matrimonial home from the definition of “net family property”, the recalculation of child support amounts to reflect updated income information as well as orders regarding conduct of parties, and in particular contact and communication between parties, in family law proceedings related to Parts I, II, III of the Family Law Act.[25]

The LCO also participates as an observer to the Ontario Bar Association Family Law Working Group, which seeks to propose practical ways to apply findings from the Mamo report[26] to the unified family court system. Other reports have been recently produced in the area of Ontario family law, including the Osborne Report, the sixth section of which focuses on unrepresented litigants.[27] The Law Commission of Canada report “Beyond Conjugality”[28] focused on the implications of the notion of conjugality in various areas of the law including family law and contributed to a reflection on the definition of the family. The CLEO report[29] from its Think Tank on the effective use of self-help family law materials by low income and marginalized communities, the results of which the LCO distributed during its Family Law Roundtable, is another example. In brief, many initiatives have been taken recently in the area of family law. In this context, the LCO seeks to propose projects that are different and complementary to existing ones.

As a family law bill has recently been introduced in Ontario and concrete law reform proposals have already been made in the area of family law, such as those found in the research reports named in the previous paragraph, it is important that the LCO does not duplicate research and focus on areas where more research is needed. Based on its research, the LCO will be in a position to support already existing recommendations where appropriate and formulate additional ones.

3. Comparative Research

In terms of the scope of the chosen project, Family Roundtable participants made clear that the LCO should not reinvent the wheel. Roundtable participants pointed out that other jurisdictions’ family justice models should be closely examined as part of any LCO project. The LCO regularly conducts comparative research and agrees with participants that it should inquire into already existing and well-functioning family justice models nationally and internationally. The LCO should build on this knowledge, push it further and perhaps help find new ways to put it into practice.

4. Province-Wide Consultation and Regional Analysis

The LCO can make a contribution to Ontario family law reform through province-wide consultation and possible media interaction. Because of its mandate to act at the level of the province, it can focus on bringing different voices of the Ontario justice system together. This was the goal of the Roundtable. When the new family law project has been chosen, the LCO will make particular efforts at using technology for its province-wide consultation process. The LCO hopes that such process will also help create an interest and willingness to change things in practice amongst people who already work within the family justice system.

The LCO is committed to reflect the concerns of all Ontarians and is committed to performing a regional analysis in its different projects. This type of analysis has been present in the LCO cheque cashing project[30] and is relevant to this family law project.

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