The LCO has identified one overarching process oriented project and one specific substantive law oriented project as options for a family law project. The following subsections describe these projects and sets out a series of questions to consider for each of them. The LCO invites your comments and responses to these questions.
A. Overarching Process Focused Project
“A systematic and comprehensive review looking at the delivery of Family Law Justice in Ontario is necessary.”
– Recommendation from the Mamo Report
1. Defining the Roles of Ontario Family Justice System Actors
This process oriented project would attempt to re-think what the role of actors in a model family justice system should be. Starting with the current Ontario system, the LCO would examine who are the actors in the family justice system and what their roles are. The project would then explore whether actors fulfil their roles in practice or whether role confusion is frequent, and whether their roles should change in order to improve the effectiveness of the system. Where necessary, the project would propose role clarifications or changes. This project would focus on the simple question: “who should do what?”
This project would compare the roles of Ontario actors to that of other family justice systems in Canada and abroad. In particular, the LCO would study family justice models in the United States and Australia, but would consider other jurisdictions as appropriate. This comparative analysis would help identify what other jurisdictions perceive to be the necessary roles in a family justice system.
This project would not only look at the roles of each actor individually but would emphasize relationships between actors. One significant focus of this project would be to examine the tension between actors involved in public and private dispute resolution. The LCO would focus on the complementarity of their roles. It would seek to define what each dispute resolution actor’s role should be and avoid overlap between them.
Another important focus of this project would be to explore differences in impact on the family justice system when roles are played by people with different individual and group identity characteristics. The family justice system’s problems cannot be said to affect only minorities and marginalized groups. Most, if not all, users experience many of them. However, these problems may have a different impact on different people depending on their identity characteristics, an issue that this project will examine closely, in light of considerations described in the second part of this paper.
As the family justice system is under financial pressure, all actors are trying to cope within its limits. This pressure contributes to role confusion. Role confusion is also caused by the addition of new actors in the system over time, legislative changes, fragmented processes and the rise of unrepresented litigants. This role confusion or borrowing does not always benefit system users. It is therefore important to discuss and re-define these roles within the current limits of the family justice system, but also to start thinking about how re-defining these roles can help transition towards a better system.
Examples of actors whose role the LCO would examine include the following:
- Unrepresented litigants
- People who have had a violent behaviour in a family context
- Victims of family violence
- Common law or married, same or different sex couples
- Neighbours and friends of families experiencing conflict and violence
- Parties to cohabitation agreements or marriage contracts
- Extended family members
- Public and private dispute resolution users
- People simultaneously involved in the family and criminal and/or immigration systems
- Frequent users of the court system
- Legal Aid usersSystem Workers
- Child protection workers
- Social workers
- Legal Aid workers
- Police officers
- Law clerks
- Immigration officers
- Women’s shelters staff
- Family Law Information Centres’ staff
- Parenting coordinators
- Legal clinics’ staff
- Government representativesThe LCO would develop short, medium and long term recommendations to re-define the roles of actors in the Ontario family justice system and improve its overall functioning.
2. Questions to Consider
· Should new roles be created within the system? Have some roles become unnecessary?
· Should this project focus on the role of only one or two actors within the family justice system?
· Many believe that courts are used beyond their capacity. Are court actors’ roles appropriately defined? Are courts doing things that other bodies should do? Are roles properly defined between public and private dispute resolution? What should be the role of ADR and family supports in the family justice system?
· Does this project properly address the needs of Ontarians who contract out of Ontario family law? Who can support them in their decision-making? Who can respond to their needs?
· How can a model family justice system’s activities be best coordinated? Is a coordination role necessary? Who should perform this role?
B. Specific Substantive Project
1. The Matrimonial Home’s Legislative Framework in Ontario
The Ontario government recently introduced a bill clarifying that debts related to the purchase or significant improvement of a matrimonial home should be deducted from the net family property under the Family Law Act. This is an example of a positive step in terms of clarifying the law as it relates to the matrimonial home in Ontario. However, other legal issues remain in this area, which this project would seek to address.
This project would examine the legislative framework around the matrimonial home in Ontario. It would look into legal issues mentioned by Roundtable participants. For example, following the work of the former Ontario Law Reform Commission on family law property, the LCO would examine the issue of the non-deductibility of the matrimonial home at the date of marriage and, especially, its impact on women. It would look into the impact of the Family Law Act matrimonial home provisions on common law spouses and cohabitees. It would also explore issues related to matrimonial homes situated on reserves.
In addition to legal analysis, the LCO could use social science tools, including gender-based data, to better understand the impact of the current legal framework on Ontario families. A social science approach may also be helpful in terms of identifying why, for example, the matrimonial home is not always split 50/50 at relationship breakdown. It would help understand why the matrimonial home still has a special status as opposed to other assets in Ontario law. This aspect of the project would help the LCO propose law reform that reflects today’s context.
2. Questions to Consider
· As research has already been done in the area of the non-deductibility of the matrimonial home, is it useful for the LCO to focus on this issue? Is there already consensus around the idea that the matrimonial home be deducted and if so, should it be the role of government to introduce legislation in this area without need for further research?
· Is it useful to study the matrimonial home in isolation or would it be better to study all family property?
· Is there a way to study the matrimonial home without excluding those who do not own homes? Is access to matrimonial homes a significant issue in Ontario (both in terms of access to ownership and access to a home owned by an ex-spouse)?
· Are there other specific legal issues that should be addressed around the matrimonial home?
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