Endnotes2017-03-03T18:33:19+00:00

[1] “Intimate relationships between adults” includes both marriages and non-marital cohabitational relationships. Statistics Canada estimates that 38% of recent marriages will end in divorce before the 30th anniversary. (Anne-Marie Ambert, Divorce: Facts, Causes & Consequences, 3d Ed. (Ottawa: Vanier Institute of the Family, 2009), online: Vanier Institute of the Family <http://www.vifamily.ca/library/cft/divorce_09.pdf> (last accessed: 20 June 2010) at 3). In 2001, 16% of all Canadian couples who lived together were cohabiting without marriage. (Anne-Marie Ambert, Cohabitation and Marriage: How are they Related? (Ottawa: Vanier Institute for the Family, 2005), online: Vanier Institute for the Family <http://www.vifamily.ca/library/cft/cohabitation.pdf> (last accessed: 20 June 2010) Half of all of these relationships dissolved within five years. (Anne Milan, “One hundred years of families” (2000) 56 Canadian Social Trends 2).

[2] Among lower- and middle-class Ontarians, 12% reported that they had experienced “family relationship problems” within a three year period. (R. Roy McMurtry et al., Listening to Ontarians: Report of the Ontario Civil Legal Needs Project (Toronto: Ontario Civil Legal Needs Project Steering Committee, 2010), online: Law Society of Upper Canada <http://www.lsuc.on.ca/media/may3110_oclnreport_final.pdf> (last accessed: 20 June 2010) at 21).

[3] These recommendations are identified in bold font.

[4] An interesting, and very broad example of the latter is that offered by Canada’s Vanier Institute of the Family at http://www.vifamily.ca/about/definition.html.

[5] Part I of the Constitution Act, 1982.

[6] According to one recent policy report, family law involves “a restructuring of the family at a time of crisis… when children are involved, family members remain financially, emotionally and practically interdependent indefinitely.” (Barbara Landau et al., Final Report And Recommendations From The Home Court Advantage Summit (November 22‐23, 2009) (Toronto: ADR Institute of Ontario Ontario Bar Association, and Ontario Association for Family Mediation, 2009), online: ADR Institute of Ontario <http://www.adrontario.ca/media/INTERIM%20REPORT%20FINAL%20BL%20Dec%2010-09%20_2_.pdf> (last accessed: 20 June 2010) at 7.)

[7] Divorce Act, R.S.C. 1985, (2d Supp.), c. 3, s. 16(10).

[8] Rhonda Freeman, “Parenting after Divorce: Using Research to Inform Decision-Making about Children” (1998) 15 Can. J. Fam. L. 79 at 95-96; Solangel Maldonado, “Cultivating Forgiveness: Reducing Hostility and Conflict after Divorce” (2008) 43 Wake Forest L.Rev. 441.

[9] See e.g. Andrew S. Watson, “The Children of Armageddon: Problems of Custody Following Divorce” (1969) 21 Syracuse L. Rev. 55 at 78; Elizabeth S. Scott and Robert E. Scott, “Parents As Fiduciaries” (1995) 81 Va. L. Rev. 2403 at 2439-2440; Carol Smart and Bren Neale, Family fragments? (Malden, Mass.: Blackwell, 1999) at 198-199.

[10] Paul R. Amato et al., Alone together : how marriage in America is changing (Cambridge, Mass.: Harvard University Press, 2007) at 4-8.

[11] Nancy Ver Steegh, “Family Court Reform and ADR: Shifting Values and Expectations Transform the Divorce Process” (2009) 42 Fam. L.Q. 659; Peter Salem, “The Emergence of Triage in Family Court Services: The Beginning of the End for Mandatory Mediation?” (2009) 47 Fam. Ct. Rev. 371; Amy G. Applegate, Amy Holtzworth-Munroe and Brian M. D’Onofrio, “Family Dispute Resolution: Charting A Course For The Future” (2009) 47 Fam. Ct. Rev. 493 at 495.

[12] Laura Kipnis, writing in a polemical vein and with tongue perhaps in cheek, proposes that love and marriage might be “the most efficient kind of social control possible. … Wouldn’t the most elegant means of producing acquiescence be to somehow transplant those social controls so seamlessly into the guise of individual needs that the difference between them dissolved? … what if it could be accomplished through love?” (Laura Kipnis, Against love : a polemic (New York: Pantheon Books, 2003) at 39).

[13] Meg Luxton, “Conceptualizing ‘Families’: Theoretical Frameworks and Family Research” in Maureen Baker ed., Families : changing trends in Canada, 5th ed. (Toronto.: McGraw-Hill Ryerson, 2005) 29 at 45.

[14] Minority judgment of L’Heureux-Dubé J. in Nova Scotia (Attorney General) v. Walsh, [2002] 4 SCR 325, 2002 SCC 83 (S.C.C.); Caroline A. Thomas, “The Roles of Registered Partnerships and Conjugality in Canadian Family Law” (2006) 22 Can. J. Fam. L. 223; Nicholas Bala, “Controversy Over Couples in Canada: The Evolution of Marriage and Other Adult Interdependent Relationships” (2003) 29 Queen’s L.J. 41.

[15] Majority judgment of Bastarache J. in Nova Scotia (Attorney General) v. Walsh, note 14; Noel Semple, “In Sickness And In Health? Spousal Support And Unmarried Cohabitants” (2008) 24 Can. J. Fam. L. 317.

[16] Brenda Cossman and Bruce Ryder, “What is Marriage-Like Like? The Irrelevance of Conjugality” (2001) 18 Can. J. Fam. L. 269; Beyond Conjugality: Close Personal Relationships Between Adults (Ottawa: Law Commission of Canada, 2001), online: Law Commission of Canada <http://www.lcc.gc.ca/research_project/cpra-en.asp> (last accessed: 20 June 2010). See also the European Court of Human Rights Case of Burden and Burden v. the United Kingdom (Application no. 13378/05, judgment issued on April 29 2008). In this case, two cohabiting sisters challenged English law for failing to extend to them a tax benefit which would have been available had their cohabitation been “conjugal” in nature.

[17] Ernest Watson Burgess, Mary Margaret Thomes and Harvey J. Locke, The family, from institution to companionship, [3d ed. (New York,: American Book Co., 1963).

[18] Amato et al., note 10 at 240.

[19] Andrew J. Cherlin, “The deinstitutionalization of American marriage” (2004) 66 J.Marriage & Fam. 848 at 848.

[20] Amato et al., note 10 at 240.

[21] Kerry Daly, The Changing Culture of Parenting (Ottawa: Vanier Institute of the Family, 2004), online: Vanier Institute of the Family <http://www.vifamily.ca/library/cft/parenting.html> (last accessed: 20 June 2010) at 4 (citation omitted).

[22] Zheng Wu, Cohabitation : an alternative form of family living (Oxford: Oxford University Press, 2000) and John Eekelaar and Mavis Maclean, “Marriage and the Moral Bases of Personal Relationships,” (2004) 31 J. of Law and Soc. 510.

[23] Family Law Act (Ontario), R.S.O. 1990, c. F.3 (“FLA”), Part IV.

[24] George M. Guess and Paul G. Farnham, “Cost-Benefit Analysis: The Case of Environmental Air Quality Standards” in George M. Guess & Paul G. Farnham eds., Cases in public policy analysis 2nd ed. (Washington, D.C.: Georgetown University Press, 2000) 303.

[25] Robert Sugden and Alan H. Williams, The principles of practical cost-benefit analysis (New York: Oxford University Press, 1978) at 89-90.

[26] John Hicks,”The Foundations of Welfare Economics” (1939) 49 Economic Journal 696 and Nicholas Kaldor, “Welfare Propositions in Economics and Interpersonal Comparisons of Utility” (1939) 49 Economic Journal 549.

[27] E.g. see Chapter 12 in Tevfik F. Nas, Cost-benefit analysis: theory and application (Thousand Oaks, Calif.: Sage Publications, 1996).

[28] Nas, note 27 at chap. 13.

[29] Frank Ackerman and Lisa Heinzerling, Priceless: on knowing the price of everything and the value of nothing (New York: Distributed by W.W. Norton, 2004).

[30] Guess and Farnham, note 24 at 308.

[31] Office of the Parliamentary Budget Officer (Canada), Methodology for Estimating the Fiscal Impact of the Costs Incurred by the Government of Canada in Support of the Mission in Afghanistan (Ottawa: Office of the Parliamentary Budget Officer (Canada), 2008), online: Parliament of Canada <http://www2.parl.gc.ca/Sites/PBO-DPB/documents/Afghanistan_Cost_Methodology_FINAL_E_WEB.pdf> (last accessed: 20 June 2010).

[32] Commission on the Measurement of Economic Performance and Social Progress, “Working Papers and Reports,” online: <http://www.stiglitz-sen-fitoussi.fr/en/documents.htm> (last accessed: 20 June 2010).

[33] Nathan Laurie, The Cost Of Poverty: An Analysis Of The Economic Cost Of Poverty In Ontario (Toronto: Ontario Association of Food Banks, 2008), online: Ontario Association of Food Banks <www.oafb.ca/assets/pdfs/CostofPoverty.pdf> (last accessed: 20 June 2010) at 4.

[34] Laurie, note 33 at 7.

[35] Cass R. Sunstein, Risk and reason : safety, law,and the environment (Cambridge ; New York: Cambridge University Press, 2002) at 124.

[36] Clifford Cobb, Ted Halstead and Jonathan Rowe, The genuine progress indicator : summary of data and methodology ([San Francisco, CA]: Redefining Progress, 1995); GPIAtlantic, “Genuine Progress Index for Atlantic Canada,” online: <http://www.gpiatlantic.org/gpi.htm> (last accessed: 20 June 2010).

[37] See, e.g. Clarke Matthew and Lawn Philip, “Measuring Victoria’s genuine progress: A Genuine Progress Indicator (GPI) for Victoria” (2005) 24 Economic Papers – Economic Society of Australia 368 at 370-1.

[38] However, certain important efforts have been made, e.g. Rachel Ebling, Kyle D. Pruett and Marsha Kline Pruett, “‘Get Over It:’ Perspectives On Divorce From Young Children” (2009) 47 Fam. Ct. Rev. 665.

[39] Janet Mosher et al., Walking on Eggshells: Abused Women’s Experiences of Ontario’s Welfare System (Toronto: Osgoode Hall Law School (York University), 2004), online: York University <http://www.yorku.ca/yorkweb/special/Welfare_Report_walking_on_eggshells_final_report.pdf> (last accessed: 20 June 2010).

[40] General Regulation under the Ontario Works Act, 1997, O. Reg. 134/98, s. 13(1).

[41] Ontario Works Policy Directives: 5.5 Family Support (February 2009) (Toronto: Ministry of Community and Social Services (Ontario), 2009), online: Ministry of Community and Social Services (Ontario) <http://www.mcss.gov.on.ca/en/mcss/programs/social/directives/directives/OWDirectives/5_5_OW_Directives.aspx> (last accessed: 20 June 2010) See also analogous provisions regarding the Ontario Disability Support Plan: Ontario Disability Support Program Income Support Directives: 5.15 – Spousal and Child Support (July 2009) (Toronto: Ministry of Community and Social Services (Ontario), 2009), online: Ministry of Community and Social Services (Ontario) <http://www.mcss.gov.on.ca/documents/en/mcss/social/directives/odsp/income_Support/5_15.pdf> (last accessed: 20 June 2010).

[42] Mosher et al., note 39 at 44.

[43] Mosher et al., note 39 at 44.

[44] E.g. Rae Kaspiew et al., Evaluation of the 2006 family law reforms (Melbourne: Australian Institute of Family Studies, 2009), online: Australian Institute of Family Studies <http://www.aifs.gov.au/institute/pubs/fle/> (last accessed: 20 June 2010) at 58 and Alison P. Hobbs, Client evaluation of a mandatory child custody mediation program (Psy D, Chestnut Hill College 2004) [unpublished] Online: http://proquest.umi.com/pqdweb?did=1031036421&Fmt=7&clientId=65345&RQT=309&VName=PQD. For an excellent example of an evaluative methodology which deployed various empirical techniques, see Alfred A. Mamo, Peter G. Jaffe and Debbie G. Chiodo, Recapturing and Renewing the Vision of the Family Court (Toronto: Ministry of the Attorney General (Ontario), 2007), online: Centre for Research & Education on Violence against Women and Children <http://www.crvawc.ca/documents/Family%20Court%20Study%202007.pdf> (last accessed: 20 June 2010) at 17 and thereafter.

[45] Kaspiew et al., note 44 at 35.

[46] Hon Diana Bryant, “Speech to the Inaugural Family Law System Conference,” Old Parliament House, Canberra, February 19, 2009(last accessed: 20 June 2010).

[47] Maldonado, note 8.

[48] E.g. Jennifer E. McIntosh, Hon Diana Bryant and Kristen Murray, “Evidence of a Different Nature: The Child- Responsive and Less Adversarial Initiatives of the Family Court of Australia” (2008) 46 Fam. Ct. Rev. 125 at 132.

[49] However formal CBA has been deployed in the related field of youth criminal justice initiatives: Beth Green and Eric J. Bruns, King County Family Treatment Court Outcomes Evaluation Design: Cost Benefit Evaluation Design (Seattle: King County, 2006), online: King County (Washington State) <http://www.kingcounty.gov/courts/juvenilecourt/~/media/courts/JuvenileCourt/documents/ftcsustain.ashx> (last accessed: 20 June 2010). See also Vera Institute of Justice, “Cost-Benefit Analysis of Programs for Court-Involved Youth in New York,” online: <http://www.vera.org/project/cba-court-involved-youth-new-york. > (last accessed: 20 June 2010).

[50] OBA Family Law Section, ADR Institute Of Ontario and Ontario Association Of Family Mediators, Family Law Process Reform: Supporting Families To Support Their Children (Toronto: Ontario Association for Family Mediation, 2009), online: Ontario Association for Family Mediation <http://www.oafm.on.ca/Documents/OBA%20OAFM%20ADR%20Institute%20submission%20Apr%207%2009.pdf> (last accessed: 20 June 2010) at 7.

[51] OBA Family Law Section, ADR Institute Of Ontario and Ontario Association Of Family Mediators, note 50 at Appendix C.

[52] E.g. Jennifer E. McIntosh, “Legislating For Shared Parenting: Exploring Some Underlying Assumptions” (2009) 47 Fam. Ct. Rev. 389 at 391; Seth J. Schwartz and Gordon E. Finley, “Mothering, Fathering, And Divorce: The Influence Of Divorce On Reports Of And Desires For Maternal And Paternal Involvement” (2009) 47 Fam. Ct. Rev. 506 at 506; Nicholas Bala and Nicole Bailey, “Enforcement of Access & Alienation of Children: Conflict Reduction Strategies & Legal Responses” (2004) 23 C.F.L.Q. 1.

[53]Andrew Schepard, “Parental Conflict Prevention Programs and the Unified Family Court: A Public Health Perspective” (1998) 32 Fam. L.Q. 95 at 95 and 105; David Doolittle et al., The Scientific Basis of Child Custody Decisions (New York: Wiley, 1999) note 53 at 426 and 430; Joan B. Kelly and Robert E. Emery, “Children’s Adjustment Following Divorce: Risk and Resilience Perspectives” (2003) 52 Family Relations 352 at 353.

[54] E.g. Martha Shaffer, “Joint Custody, Parental Conflict and Children’s Adjustment to Divorce: What the Social Science Literature Does and Does Not Tell Us” (2007) 26 C.F.L.Q. 285 at 314; Richard A. Warshak, “Punching The Parenting Time Clock: the Approximation Rule, Social Science, and the Baseball Bat Kids” (2007) 45 Fam. Ct. Rev. 600; Michael Saini and Rachel Birnbaum, “Linking Judicial Decision-making in Joint Custody Awards with Evidence-based Practice: It Is Possible” (2005) 24 C.F.L.Q. 139. However a few advocates for a joint custody presumption actually claim that this reform would reduce inter-parental conflict. (e.g. Landon Pearson and Roger Gallaway, For the sake of the children : report of the Special Joint Committee on Child Custody and Access (Ottawa: Parliament of Canada, 1998), online: Parliament of Canada <http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=1031529&Language=E&Mode=1&Parl=36&Ses=1> (last accessed: 20 June 2010), at vi); Jill Burrett and Michael Green, “The problem with caution: Comments on the McIntosh/Chisholm Study Cautionary notes on the shared care of children in conflicted parental separation,” online: <www.familylawwebguide.com.au/news/pg/news/view/335> (last accessed: 20 June 2010).

[55] [2009] O.J. No. 6028.

[56] [2009] O.J. No. 6028, note 55 at para 51.

[57] [2009] O.J. No. 6028, note 55 at para 102.

[58] [2009] O.J. No. 6028, note 55 at paras 126-127.

[59]Civil Legal Needs of Lower and Middle-Income Ontarians: Quantitative Research (Toronto: Environics Research Group, 2009), online: Law Society of Upper Canada <http://www.lsuc.on.ca/media/may3110_oclnquantitativeresearchreport.pdf> (last accessed: 20 June 2010), at 68.

[60]The Bank of Canada warned in December 2009 that “the vulnerability of Canadian households to adverse wealth and income shocks has risen in recent years as aggregate debt levels have increased in relation to income.” While the focus of the Bank’s report was the potential impact of global financial crisis on Canadian households, family separation also qualifies as a “wealth and income shock.” ( Financial System Review (Ottawa: Bank of Canada, 2009), online: Bank of Canada <http://www.bankofcanada.ca/en/fsr/2009/fsr_1209.pdf> (last accessed: 20 June 2010) at 5.)

[61] Roger Sauvé, The Current State of Canadian Family Finances: 2009 Report (Ottawa: Vanier Institute, 2010), online: Vanier Institute <http://www.vifamily.ca/library/cft/famfin09.pdf> (last accessed: 20 June 2010) at 30. Data from Statistics Canada.

[62] Sauvé, note 61 at 13.

[63] Sauvé, note 61 at 14.

[64] Sauvé, note 61 at 12.

[65] Canadian Payroll Association, Majority of Canadian employees living paycheque to paycheque (Toronto: Canadian Payroll Association, 2009), online: CNW Group <http://www.newswire.ca/en/releases/archive/September2009/14/c4808.html> (last accessed: 20 June 2010).

[66][2009] O.J. No. 6028, note 55 at 9.

[67] Roderic Beaujot and Zenaida R. Ravanera, “Family Models for Earning and Caring: Implications for Child Care and for Family Policy” (2009) 3 Canadian Studies in Population 145 at 147, citing Gary Becker, A Treatise on the Family. (Cambridge, MA: Harvard University Press, 1991).

[68] Gillian Ranson identified “persistence of traditional beliefs and expectations about mothering and fathering” as a leading reason for the persistence of traditional gender roles within families.” (Gillian Ranson, Against the grain: couples, gender, and the reframing of parenting (Toronto: University of Toronto Press, 2010) at 3). Ranson also noted two other possible explanations. First, women may wish to retain control over the household and men may wish to retain control over the income for cultural reasons. Second, men are in many cases able to earn more money than their female partners due to the gender gap, which creates a greater incentive for men to work. According to a recent American study the gender gap is slowly narrowing but full-time female employees still earn 80% of what full-time male employees earn (Ellen Galinksy, Kerstin Aumann and James T. Bond, Times Are Changing: Gender and Generation at Work and at Home: Families and Work Institute, 2009), online: Families and Work Institute <familiesandwork.org/site/research/reports/Times_Are_Changing.pdf> (last accessed: 20 June 2010) at 7).

[69] This fact is recognized, for example, in the Spousal Support Advisory Guidelines, which apply one of two entirely distinct sets of formulae depending on whether or not there is a child support obligation between the parties (Carol Rogerson and Rollie Thompson, Spousal Support Advisory Guidelines (Final Version): Department of Justice (Canada), 2008), online: Department of Justice (Canada) <http://www.justice.gc.ca/eng/pi/fcy-fea/spo-epo/g-ld/spag/index.html> (last accessed: 20 June 2010)). Carol Rogerson (one of the authors of the spousal support advisory guidelines) reviews the literature on the financial impact of parenting in an earlier document prepared for the Guidelines project: Carol Rogerson, Developing Spousal Support Guidelines in Canada: Beginning the Discussion: Department of Justice (Canada), 2002), online: Department of Justice (Canada) <http://www.justice.gc.ca/eng/pi/fcy-fea/spo-epo/g-ld/ss-pae/pdf/ss-pae.pdf> (last accessed: 20 June 2010) at 31.

[70] Beaujot and Ravanera, note 67 at 147.

[71] According to one recent report, employed Canadian parents of children under 12 are spending substantially more time with those children, and this trend is also seen abroad. (Daly, note 21). An American study found that mothers and fathers born after 1980 are “spending considerably more time with their children” than mothers and fathers born before this date (Galinksy, Aumann and Bond, note 68 at 15). This could be due to expanding expectations of what is involved in being a “good parent.”

[72] Moge v. Moge, 1992 3 S.C.R. 813, 43 R.F.L. (3d) 345, 1992 CarswellMan 143 (S.C.C.) at section VI(5).

[73] Gillian Ranson, “Paid and Unpaid Work: How do Families Divide their Labour?” in Maureen Baker ed., Families : changing trends in Canada, 5th ed. (Toronto.: McGraw-Hill Ryerson, 2005) 99 at 107.

[74] Caught in the Time Crunch: Time Use, Leisure and Culture in Canada (Toronto: Canadian Index of Wellbeing, 2010), online: Canadian Index of Wellbeing <http://www.ciw.ca/Libraries/Documents/Caught_in_the_Time_Crunch.sflb.ashx> (last accessed: 20 June 2010) at 5-6.

[75] Naturally, a different set of questions must be asked about families with same-sex partners. Gillian Ranson notes that little research has been performed to date on these households but “what there is suggests a division of family work that is much more egalitarian than in heterosexual households.” (Ranson, “Paid and Unpaid Work: How do Families Divide their Labour?” in Baker, ed., note 73 at 110.) If this is true, it would follow that those exiting same-sex relationships are less likely to experience economic challenges due to earning-potential sacrifices.

[76] Joseph Pleck, “Paternal involvement: levels, sources and consequences” at 66-103 in Michael Lamb ed., The Role of the Father in Child Development, 3rd edition (New York: Wiley and Sons., 1997).

[77] Linda Duxbury and Chris Higgins, 2001 National Work–Life Conflict Study: Report One (Ottawa: Health Canada, 2001) at 31.

[78] Duxbury and Higgins, note 77.

[79] Paul Millar, The Best Interests of Children: An Evidence-Based Approach (Toronto: University of Toronto Press, 2009) at 83.

[80] Beaujot and Ravanera, note 67 at 149.

[81] Daly, note 21 at 12.

[82] J. Thomas Oldham, “Changes In The Economic Consequences Of Divorces, 1958-2008” (2008) 42 Fam. L.Q. 419 at 425, citing Lynne M. Casper and Suzanne M. Bianchi, Continuity & Change in the American Family (Thousand Oaks, Calif. : Sage Publications, 2002.)

[83] Ranson, Against the Grain, note 68 at 15.

[84] Beaujot and Ravanera, note 67 at 149.

[85] Beaujot and Ravanera, note 67.

[86] Beaujot and Ravanera, note 67 at 152.

[87] Beaujot and Ravanera, note 67 at 147.

[88] Ranson, Against the Grain, note 68.

[89] Ranson, Against the Grain, note 68 at 17, citation omitted.

[90] Beaujot and Ravanera, note 67 at 149.

[91] Statistics Canada Social and Aboriginal Statistics Division, Women in Canada: A Gender-based Statistical Report (Catalogue no. 89-503-XIE) (Ottawa: Minister of Industry (Canada), 2006), online: Statistics Canada <http://www.statcan.gc.ca/pub/89-503-x/89-503-x2005001-eng.pdf> (last accessed: 20 June 2010) at 133.

[92] Statistics Canada Social and Aboriginal Statistics Division, note 91 at 152.

[93] Statistics Canada Social and Aboriginal Statistics Division, note 91 at 151.

[94] Daly, note 21 at 5.

[95] Ranson, Against the Grain, note 68 at 15.

[96] Beaujot and Ravanera, note 67 at 147.

[97] Beaujot and Ravanera, note 67 at 149: “Men’s employment ratios have declined since 1981 and women’s have increased since 1971.”

[98] Galinksy, Aumann and Bond, note 68 at 16.

[99] Daly, note 21 at 12. See also Beaujot and Ravanera, note 67 at 148.

[100][2009] O.J. No. 6028, note 55 at 14.

[101] Ranson, Against the Grain, note 68 at 25, paraphrasing Oriel Sullivan, Changing Gender Relations, Changing Families: Tracing the Pace of Change. (New York: Rowman and Littlefield (Gender Lens Series), 2006).

[102] Moge v. Moge, note 72 at sections VI(4) and (5).

[103] Christy Spivey, “Time off at What Price – The Effects of Career Interruptions on Earnings” (2005) 59 Indus. & Lab. Rel. Rev. 119.

[104] Spivey, note 103 at 138.

[105] Spivey, note 103 at 137.

[106] Robert Leckey, “Families in the Eyes of the Law: Contemporary Challenges and the Grip of the Past” (2009) 15 IRPP Choices at 9. See also Paul Robinson, Profile of Child Support Beneficiaries; Catalogue no. 85-002-X; March 2009: Juristat Vol. 29, no. 1. (Ottawa: Statistics Canada, 2009), online: Statistics Canada <http://www.statcan.gc.ca/pub/85-002-x/2009001/article/10784-eng.htm> (last accessed: 20 June 2010): “In 2005 … 24% of female lone-parent families lived in low income, compared to 11% of male lone-parent families and 6% of couple families.” Some although not all women who lead lone-parent families were previously married or cohabiting in a conjugal relationship.

[107] Carol Rogerson, “Spousal Support After Moge” (1996) 14 C.F.L.Q. 281 at FN14 and Moge v. Moge, note 72: “These same sacrifices may also enhance the earning potential of the other spouse (usually the husband) who, because his wife is tending to such matters, is free to pursue economic goals.”

[108][2009] O.J. No. 6028, note 55 at para 9.

[109] Ontario’s Family Law Act states that “an order for the support of a spouse should recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse.” (FLA, note 23 at 33(8)(a). A similar provision is found in the Divorce Act, note 7 at 15.2(6)(a).) See also Canadian Divorce Law and Practice, Vol. 3: Spousal Support, 2nd ed. by James C. MacDonald, Ann C. Wilton & Noel Semple (Toronto: Carswell, 2009), Overview and Chapter 6; Semple, note 15.

[110] Rogerson, Beginning the Discussion, note 69 at 59.

[111] Rogerson and Thompson, Spousal Support Advisory Guidelines (Final Version), note 69 at 113.

[112] McMurtry et al., note 2 at 21.

[113] The second- and third- most common problems were “wills and powers of attorney problems” and “housing or land problems” respectively (McMurtry et al., note 2 at 21).

[114]Ontario Civil Legal Needs: Quantitative Research, note 59 at 68.

[115] Ontario Civil Legal Needs: Quantitative Research, note 59 at 46. It should be noted that the size of this subsample was small (76 respondents).

[116] Two long-term studies involving “children of divorce” and focusing on the effects of divorce upon them reached opposite conclusions. Wallerstein et al. found strong negative impacts on many children (Judith S. Wallerstein, Julia Lewis and Sandra Blakeslee, The unexpected legacy of divorce : a 25 year landmark study, 1st ed. (New York: Hyperion, 2000)). Heatherington and Kelly reached more optimistic conclusions (E. Mavis Hetherington and John Kelly, For better or for worse : divorce reconsidered (New York: W.W. Norton, 2002)).

[117] Robert E. Emery, David Sbarra and Tara Grover, “Divorce Mediation: Research and Reflections” (2005) 43 Fam. Ct. Rev. 22 at 25. For useful literature review see Lia Marie Constance Versaevel, Out of court: Public policy impacts concerning resolution of child custody conflicts (M.A., Royal Roads University (Canada) 2006) [unpublished] at 29-31 and Millar, note 79 at 46.

[118] Millar, note 79 at 84.

[119]Glenn A. Gilmour, High-Conflict Separation And Divorce: Options For Consideration (Report # 2004-FCY-1E) (Ottawa: Department of Justice (Canada), 2004), online: Department of Justice (Canada) <http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/rep-rap/2004/2004_1/index.html> (last accessed: 20 June 2010) at 4-7 and Janet R. Johnston, “High-Conflict Divorce” (1994) 4 The Future of Children 165.

[120][2009] O.J. No. 6028, note 55 at para 78.

[121] E.g., making this point with regard to parenting disputes, see Nelson Weisman, “On Access After Parental Separation” (1992) 36 R.F.L. (3d) 35.

[122] Schepard, note 53.

[123] An interesting example of literature which starts from the premise that many marriages should be “saved” from divorce if possible is Nester C. Kohut, Therapeutic family law : a complete guide to marital reconciliations, [2nd ed. ([Chicago]: Family Law Publications, 1968).

[124] Divorce Act, note 7, s. 9(1)(a) and (b).

[125] Katherine Shaw Spaht, “How Law Can Reinvigorate a Robust Vision of Marriage and Rival Its Post-Modern Competitor” (2004) 2 Geo. J.L. & Pub. Pol’y 449.

[126] Steven L. Nock, Laura Ann Sanchez and James D. Wright, Covenant marriage : the movement to reclaim tradition in America (New Brunswick, NJ: Rutgers University Press, 2008).

[127] Richard E. Susskind, The end of lawyers? : rethinking the nature of legal services (Oxford: Oxford University Press, 2008) at 224 and 231.

[128] Julie Lassonde, “Remarks delivered at Annual Meeting of the Canadian Law and Society Association,” Concordia University, Montreal, June 3, 2010.

[129] McMurtry et al., note 2 at 22.

[130]Robert E. Emery, “Interparental Conflict and Social Policy” in John H. Grych & Frank D. Fincham eds., Interparental conflict and child development : theory, research, and applications (New York: Cambridge University Press, 2001) 417 at 430; Schepard, note 53.

[131] Ministry of Education (Ontario), The Ontario Curriculum Grades 11 and 12: Health and Physical Education (Toronto: Ministry of Education (Ontario), 2000), online: Ministry of Education (Ontario) <http://www.edu.gov.on.ca/eng/curriculum/secondary/health1112curr.pdf> (last accessed: 20 June 2010) at 18.

[132] FLA, note 23, ss. 52 and 53.

[133] Justice Québec, “De facto spouses,” online: <http://www.justice.gouv.qc.ca/english/publications/generale/union-a.htm> (last accessed: 20 June 2010).

[134] Ministry of the Attorney General (Ontario), “Family Law Resources,” online: <http://www.attorneygeneral.jus.gov.on.ca/english/justice-ont/family_law.asp> (last accessed: 20 June 2010).

[135] Willem Adema, Babies and bosses. Volume 4, Canada, Finland, Sweden and the United Kingdom: reconciling work and family life (Paris: Organisation for Economic Co-operation and Development, 2005) at 90.

[136] Ranson, “Paid and Unpaid Work: How do Families Divide their Labour?” in Baker, ed., note 73 at 105.

[137] Starting strong II: early childhood education and care (Paris: OECD, 2006) at 104.

[138] Starting strong II: early childhood education and care, note 137 at 105.

[139] Starting strong II: early childhood education and care, note 137 at 297. Drawing on the OECD data source, a subsequent report noted substantially higher access for children on this same measure in other countries: “Belgium 63%; Denmark 78%; France 69%; Portugal 40%; U.K. 60%.” (Childcare Resource and Research Unit, Early learning and child care: How does Canada measure up? International comparisons using data from Starting Strong 2 (Organisation for Economic Co-operation and Development, 2006) (Toronto: University of Toronto Childcare Resource and Research Unit, 2006), online: Childcare Resource and Research Unit <http://www.childcarecanada.org/pubs/pdf/BN_EarlyLearning06.pdf> (last accessed: 20 June 2010) at 4.

[140] Canada Revenue Agency, “Canada Child Tax Benefit (CCTB),” online: <http://www.cra-arc.gc.ca/bnfts/cctb/menu-eng.html> (last accessed: 20 June 2010).

[141] Adema, note 135 at 23.

[142] Ministry of Education (Ontario), “Phase Two: Full-Day Kindergarten For Four- and Five-Year-Olds: Backgrounder (June 15, 2010),” online: <http://www.edu.gov.on.ca/eng/document/nr/10.06/bg0615.html> (last accessed: 20 June 2010).

[143] Lisa Philipps, “Income Splitting and Gender Equality: The Case for Incentivizing Intra-Household Wealth Transfers” in Kim Brooks et al. eds., Challenging Gender Inequality in Tax Policy Making: Comparative Perspectives (Oxford: Hart Publishing Inc., 2010) at 5.

[144] Kathleen A. Lahey, Women and Employment: Removing Fiscal Barriers to Women’s Labour Force Participation (Ottawa: Status of Women Canada, 2005), online: Status of Women Canada <http://dsp-psd.pwgsc.gc.ca/Collection/SW21-122-2005E.pdf> (last accessed: 20 June 2010) at vii.

[145] Lahey, note 144 at 23.

[146] Lahey, note 144 at 23.

[147] Philipps, note 143 at 11: “encouraging intra-household transfers promotes the long-term financial security of a lesser-earning spouse or partner, even where the transferor continues to exercise a degree of informal influence over the use of property or income while the relationship subsists.”

[148] Canada Revenue Agency, “Pension income splitting,” online: <http://www.cra-arc.gc.ca/tx/ndvdls/tpcs/pnsn-splt/menu-eng.html> (last accessed: 20 June 2010).

[149] Philipps, note 143 at 10.

[150] Philipps, at 13-14: “the failure of public policy to value the work of caregivers is significantly linked to women’s ongoing economic inequality … a system of refundable tax credits or other state transfers is needed to increase the autonomy of primary caregivers by providing an alternate source of economic security.”

[151] Beyond Conjugality: Close Personal Relationships Between Adults at 73.

[152] Canada Revenue Agency, “Line 315 – Caregiver amount,” online: <http://www.cra-arc.gc.ca/tx/ndvdls/tpcs/ncm-tx/rtrn/cmpltng/ddctns/lns300-350/315/menu-eng.html> (last accessed: 20 June 2010).

[153] Lahey,

[154] Best Practices at Family Justice System Entry Points: Needs of Users and Responses of Workers in the Justice system (Toronto: Law Commission of Ontario, 2009), online: Law Commission of Ontario <http://www.lco-cdo.org/en/family-law-process-consultation-paper> (last accessed: 20 June 2010) at 10.

[155] McMurtry et al., note 2 at 22.

[156] See “IV. A. 2. Increasing the supply and affordability of legal services,” below.

[157] Mamo, Jaffe and Chiodo, note 44 at 16; Best Practices at Family Justice System Entry Points: Needs of Users and Responses of Workers in the Justice system note 154 at 8.

[158] McMurtry et al., note 2 at 57-8.

[159] E.g. “Canadian Legal Information Institute,” online: <http://www.canlii.org/> (last accessed: 20 June 2010), “ServiceOntario E-Laws,” online: <www.e-laws.gov.on.ca> (last accessed: 20 June 2010).

[160] Ministry of the Attorney General (Ontario), note 134.

[161] These were “Ministry of the Attorney General’s Justice Ontario website (www.attorneygeneral.jus.on.ca/english/justice-ont/), the Law Society website (www.lsuc.on.ca), the Law Society’s Lawyer Referral Service site (www.lsuc.on.ca/public/a/faqs/—lawyer-referral-service/), the LAO site (www.legalaid.on.ca), and PBLO’s Law Help Ontario (www.lawhelpontario.org).” (McMurtry et al., note 2 at 28).

[162] McMurtry et al., note 2 at 28.

[163] Family Law Education for Women, “All Women: One Family Law,” online: <http://www.onefamilylaw.ca/en/home/> (last accessed: 20 June 2010) See also Ministry of the Attorney General (Ontario), note 134, and Ontario Women’s Justice Network (OWJN) www.owjn.org.

[164] “The Canadian Charter of Rights and Freedoms guarantee[s] all women in Ontario the right to access public family law to resolve their family law disputes.” (http://www.onefamilylaw.ca/en/background) This principle also animated the 2006 statutory reforms banning the use of religious family law arbitration. (Family Statute Law Amendment Act, 2006, Assented to February 23, 2006 and Family Arbitration, O. Reg. 134/07.) It is central to the province’s family law policy response to the “diversity of … family members’ identities in Ontario,” to which the Commission referred in the Call for Papers (Best Practices at Family Justice System Entry Points: Needs of Users and Responses of Workers in the Justice system note 154).

[165] McMurtry et al., note 2 at 28.

[166] Family Law Rules, O. Reg. 114/99, Rule 8.1: Mandatory Information Program In The Superior Court Of Justice In Toronto.

[167] Personal communication, Professor Shelley Kierstead (Osgoode Hall Law School). November 2, 2009 and comments of Justice Mary Jane Hatton, AFCC Ontario Chapter Meeting, April 13 2010.

[168] Superior Court of Justice (361 University Ave., Toronto) Mandatory Information Program, observed April 28, 2010. Ontario Court of Justice Parent Information Session (47 Sheppard East, Toronto), observed May 10, 2010.

[169] Desmond Ellis and Dawn Y. Anderson, “The impact of participation in a parent education program for divorcing parents on the use of court resources: An evaluation study” (2003) 21 Conflict Resolution Quarterly 169 at 184-5.

[170] Versaevel, note 117.

[171] Versaevel, note 117 at 67.

[172] Shelley Kierstead, Parent education programs in family law courts: Perils and potential (D Jur, York University (Canada) 2005) [unpublished] .

[173] Kierstead, note 172 at 169.

[174] Law Society of Upper Canada, “AccessCLE,” online: <http://lx07.lsuc.on.ca:80/R?RN=449973704> (last accessed: 20 June 2010).

[175] Law Society Act, R.S.O. 1990, c. L.8, at 4.2(2) and (3).

[176] Rogerson and Thompson, Spousal Support Advisory Guidelines (Final Version), note 69.

[177] “DivorceMate Software Inc.,” online: <http://www.divorcemate.com/> (last accessed: 20 June 2010).

[178] “DivorceMate Software Inc.,” note 177 at http://www.divorcemate.com/ppu.asp.

[179] Susskind, note 127 at 241.

[180] FLA, note 23, Part II.

[181] FLA, note 23 at s. 19.

[182] Susskind, note 127 at 241.

[183] This was confirmed by the OCLN telephone survey, according to McMurtry et al., note 2 at 59.

[184] Lassonde, note 128.

[185] Ontario Bar Association, Getting It Right: The Report of the Ontario Bar Association Justice Stakeholder Summit (Toronto: Ontario Bar Association, 2008), online: Ontario Bar Association <http://www.oba.org/en/pdf/Justice_Summit_sml.pdf> (last accessed: 20 June 2010) at 8.

[186] OBA Family Law Section, ADR Institute Of Ontario and Ontario Association Of Family Mediators, note 50 at 6.

[187] D. A. Rollie Thompson and Lynn Reierson, “A Practicing Lawyer’s Field Guide to the Unrepresented” (2002) 19 C.F.L.Q. 529 at 529-530.

[188] Anne-Marie Langan, “Threatening the Balance of the Scales of Justice: Unrepresented Litigants in the Family Courts of Ontario” (2005) 30 Queen’s L.J. 825 at 832.

[189] Kelly Harris, “The Going Rate” Canadian Lawyer (June, 2009) 32 at 36. The latter figure refers to civil cases generally, not to family cases specifically.

[190] Ontario Civil Legal Needs: Quantitative Research, note 59. The category “low- and middle-class Ontarians” was defined to include all those who lived in homes with annual household incomes of less than $75,000.

[191] Ontario Civil Legal Needs: Quantitative Research, note 59.

[192] Legal Aid Ontario, Legal Aid Ontario Update, at page 18 in Briefly Speaking (magazine of the Ontario Bar Association) (Toronto: Ontario Bar Association, 2010), online: Legal Aid Ontario <http://www.oba.org/En/briefly/PDF/Briefly%20Speaking_JuneWeb.pdf> (last accessed: 20 June 2010) at 19.

[193] McMurtry et al., note 2.

[194] Ontario Civil Legal Needs: Quantitative Research, note 59 at 52.

[195] Legal Aid Ontario, “Family Law Offices,” online: <http://www.lao.on.ca/en/contact/contact.asp?type=family> (last accessed: 20 June 2010).

[196] Legal Aid Ontario, Legal Aid Ontario Update, note 192 at 19.

[197] See, for example, Michael Trebilcock, Report of the Legal Aid Review (Toronto: Ministry of the Attorney General (Ontario), 2008), online: Ministry of the Attorney General (Ontario) <http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/trebilcock/legal_aid_report_2008_EN.pdf> (last accessed: 20 June 2010).

[198] OBA Family Law Section, ADR Institute Of Ontario and Ontario Association Of Family Mediators, note 50 at 14.

[199] McMurtry et al., note 2 at 4.

[200] Law Society of Upper Canada, “Lawyer Referral Service,” online: <http://www.lsuc.on.ca/public/a/faqs—lawyer-referral-service/> (last accessed: 20 June 2010).

[201] Vikki L. Conwell, “Family law centers a growing alternative to attorneys” Atlanta Journal-Constitution (March 16, 2010).

[202] Above, at note 200.

[203] See also Susskind, note 127 at 240.

[204] For an account of the market barriers to the practice of law erected by LSUC and other Canadian law societies, see Chapter 4 in Self-regulated professions: Balancing competition and regulation (Ottawa: Competition Bureau (Canada), 2007), online: Competition Bureau (Canada) <http://www.bureaudelaconcurrence.gc.ca/eic/site/cb-bc.nsf/vwapj/Professions%20study%20final%20E.pdf/$FILE/Professions%20study%20final%20E.pdf> (last accessed: 20 June 2010).

[205] Solicitors Act, R.S.O. 1990, c. S.15, s. 1.

[206] Competition Bureau, Self-Regulated Professions, note 204 at 70.

[207] Law Society of Upper Canada, “Paralegals,” online: <http://www.lsuc.on.ca/paralegals/> (last accessed: 20 June 2010).

[208] Competition Bureau, Self-Regulated Professions, note 204 at 69.

[209] Tracey Tyler, “Ontario paralegals try to expand their turf: Non-lawyers seek right to represent clients in family law cases, including simple divorces” Toronto Star (Apr 29, 2010) 14.

[210] Kirk Makin, “Showdown looms over expansion of paralegal services” The Globe and Mail (May 5, 2010) A.10.

[211] Makin, note 210.

[212] Law Society of Upper Canada, “News Release: Continuing professional development requirement supports professional competence (February 25, 2010),” online: <http://www.lsuc.on.ca/media/feb10_finalcpdrequirementrelease.pdf> (last accessed: 20 June 2010).

[213] Competition Bureau, Self-Regulated Professions, note 204 at 65: “Law societies should justify the duration of the professional legal training course and articling as the minimum necessary to properly and effectively practise law while protecting the public interest. When reviewing the duration of education and training lawyers require, law societies should look at other law societies that have maintained the quality of legal services while requiring shorter periods for training and articling.”

[214] Lassonde, note 128.

[215] Kaspiew et al., note 44 at E1.

[216] Kaspiew et al., note 44 at 59.

[217] The Ontario Civil Legal Needs survey found higher rates of satisfaction with lawyers than with paralegals, but did not pose this question with specific regard to family law problems (McMurtry et al., note 2 at 36).

[218] See also Susskind, note 127 at 237, who calls for a “healthy third sector… recognizing that many citizens who are in need of legal assistance want a kind, empathetic ear with only a light sprinkling of legal expertise” and “a new wave of imaginative, entrepreneurial and market-driven alternative providers of legal service … bringing new ways of making state funding go further, keeping law firms on their toes, and delivering service in a manner with which consumers are comfortable.”

[219] Susskind, note 127 at 237.

[220] McMurtry et al., note 2 at 44.

[221] E.g. Janet Reno, “The federal government and appropriate dispute resolution: Promoting problem solving and peacemaking as enduring values in our society” (2001) 19 Alternatives to the High Cost of Litigation 16.

[222] See, e.g., the Association of Dispute Resolvers webpage at http://www.leadr.com.au/adr.htm.

[223] Trina Grillo, “The Mediation Alternative: Process Dangers for Women” (1991) 100 Yale Law Journal 1545

[224] Ambert, Divorce: Facts, Causes & Consequences, 3d Ed. and Ver Steegh, note 11 at 671.

[225] Salem, note 11 at 371.

[226] Emery, “Interparental Conflict and Social Policy” in Grych and Fincham Eds., note 130 at 421; Schepard, note 53.

[227] Julie Macfarlane, The new lawyer : how settlement is transforming the practice of law (Vancouver: University of British Columbia Press, 2008).

[228] OBA Family Law Section, ADR Institute Of Ontario and Ontario Association Of Family Mediators, note 50 at 5.

[229] Allan E. Barsky, “Mediative evaluations: The pros and perils of blending roles” (2007) 45 Fam. Ct. Rev. 560 and Mamo, Jaffe and Chiodo, note 44.

[230] Resolution through solicitor negotiation is not generally considered a form of ADR, but it is certainly a very common way to avoid all or most of the steps in courtroom litigation. Favourable evaluations of the lawyer role in family dispute resolution include Rosemary and Gary Skoloff and Robert J. Levy, “Custody Doctrines and Custody Practice: A Divorce Practitioner’s View” (2002) 36 Fam. L.Q. 79 and Rosemary Hunter, “Adversarial Mythologies: Policy Assumptions and Research Evidence in Family Law” (2003) 30 Journal of Law and Society 156. A less rosy view is found in Marsha Kline Pruett and Tamara D. Jackson, “The Lawyer’s Role during the Divorce Process: Perceptions of Parents, Their Young Children, and Their Attorneys” (1999) 33 Fam. L.Q. 288 and Marsha Kline Pruett, “Divorce in legal context: outcomes for children” (1998) 13 Connecticut Family Lawyer 1. Julie MacFarlane is among those who identify different modes of legal practice with different degrees of adversarialism and collaboration. (Julie Macfarlane, “Will Changing the Process Change the Outcome? The Relationship Between Procedural and Systemic Change” (2005) 65 La. L. Rev. 1487 and Macfarlane, The New Lawyer, note 227.) In a custody or access dispute, an assessment conducted by a social worker, psychologist or psychiatrist may also have the effect of producing a settlement, even if the formal or original purpose of this service is to provide evidence for use in litigation. (Michael A. Saini, “Evidence Base of Custody and Access Evaluations” (2008) 8 Brief Treat Crisis Interven. 111; Johnston, note 119 at 178.) Settlement is rendered more likely if the parties believe that the judge will follow the assessor’s recommendations. Evaluations may also unintentionally produce settlement if the process focuses the parties on the needs of their children. (Peter Ash and Melvin J. Guyer, “Court implementation of mental health professionals’ recommendation in contested child custody and visitation cases” (1984) 12 Bulletin of the American Academy of Psychiatry and the Law 137 at 145; Andrew Schepard, Children, Courts, and Custody: Interdisciplinary Models for Divorcing Families (New York: Cambridge University Press, 2004) at 153.

[231] E.g. Joanne Goss, “Judicial Dispute Resolution: Program Setup and Evaluation in Edmonton” (2004) 42 Fam. Ct. Rev. 511; Yvonne Pearson et al., “Early Neutral Evaluations: Applications to Custody and Parenting Time Cases Program Development and Implementation in Hennepin County, Minnesota” (2006) 44 Fam. Ct. Rev. 672.

[232] For example, a sample of 19 cases in which 16 settled in S. Margaret Lee and Robert Kaufman, “Interdisciplinary Settlement Conferences: Utilizing Volunteer Mental Health Professionals and Family Law Attorneys to Settle Challenging Cases” AFCC News (Winter, 2010) 2.

[233] Much of the literature surveyed here can be classified as “evaluation research,” an approach which has its own distinct methodology. (See e.g. Herbert J. Rubin and Irene Rubin, Qualitative interviewing : the art of hearing data, 2nd ed. (Thousand Oaks, Calif.: Sage, 2005)). In this context, deploying multiple methods to answer research questions in this way, a process known as “triangulation,” is identified as key to producing reliable conclusions. Norman K. Denzin and Yvonna S. Lincoln, The SAGE handbook of qualitative research, 3rd ed. (Thousand Oaks, Calif.: Sage, 2005) at 5.

[234] Canada Department of Justice, Evaluation of the Divorce Act Phase 2: monitoring and evaluation (Ottawa: Bureau of Review, 1990) and 3.03–Family Responsibility Office, in 2003 Annual Report (Toronto: Office of the Provincial Auditor of Ontario, 2003), online: Office of the Provincial Auditor of Ontario <http://www.auditor.on.ca/en/reports_en/en03/303en03.pdf> (last accessed: 20 June 2010)and M. Marion Boyd, Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion (Toronto: Ministry of the Attorney General (Ontario), 2004).

[235] Mamo, Jaffe and Chiodo, note 44.

[236] Eileen Pruett and Cynthia Savage, “Statewide Initiatives to Encourage Alternative Dispute Resolution and Enhance Collaborative Approaches to Resolving Family Issues” (2004) 42 Fam. Ct. Rev. 232.

[237] Liza Cohen Hita et al., “Family Court- University Partnership to Benefit Divorcing Families: The Experience of Maricopa County (Arizona) Family Court Department and Arizona State University’s Prevention Research Center” (2009) 47 Fam. Ct. Rev. 436.

[238] E.g. Andrew Schepard, “New York lacks strong mediation component in child custody cases” New York Law Journal (May 13, 2009) and a special 2005 issue of the Family Law Quarterly edited by Marianne Blair and Merle Weiner. (“Resolving Parental Custody Disputes – A Comparative Exploration Symposium on Comparative Custody Law.”)

[239] Ministry of the Attorney General (Ontario), Court Services Division Annual Report 2008/2009 (Toronto: Queen’s Printer for Ontario, 2009), online: Ministry of the Attorney General (Ontario) <http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/courts_annual_08/Court_Services_Annual_Report_TOC_EN.pdf> (last accessed: 20 June 2010) at 1.

[240] Ministry of the Attorney General (Ontario), Court Services Division Annual Report 2008/2009 note 239 at 32.

[241] Maldonado, note 8; Salem, note 11; Nicholas Bala and Annelise Saunders, “Understanding the Family Context: Why the Law of Expert Evidence is Different in Family Law Cases” (2002) 20 C.F.L.Q. 277 at 9(f). The Families in Transition programs offered by Family Service Toronto (http://www.familyservicetoronto.org/programs/families.html) appear to blend closed mediation with therapy and educational initiatives in a holistic fashion.

[242]Joan B. Kelly, “Family Mediation Research: Is There Empirical Support for the Field?” (2004) 22 Conflict Resolution Quarterly 3; Cornelia Brentano and Alison Clarke-Stewart, Divorce: Causes and Consequences (New Haven, CT: Yale University Press, 2006) at 189. On the other hand, Rosemary Hunter refers to empirical evidence that solicitor negotiations produce more full settlements than mediation does. (Hunter, note 230).

[243] Jennifer E. McIntosh et al., “Child-Focused and Child-Inclusive Divorce Mediation: Comparative Outcomes from a Prospective Study of Postseparation Adjustment” (2008) 46 Fam. Ct. Rev. 105.

[244] Penelope E. Bryan, “Killing Us Softly: Divorce Mediation and the Politics of Power” (1992) 40 Buff. L. Rev. 441.

[245] Dana Royce Baerger et al., “A methodology for reviewing the reliability and relevance of child custody evaluations” (2002) 18 J.Am.Acad.Matrimonial Law. 35 at 44-5.

[246]The Alberta Institute of Law Research and Reform, writing about that province’s amicus curiae program of custody and access evaluations, estimated that 90% of the cases reached settlement after receiving the report (Alberta Law Reform Institute, Protection of Children’s Interests in Custody Disputes (Report No. 43) (Edmonton: Alberta Law Reform Institute, 1984)). In the seminal 1984 study of psychiatrist custody evaluations done by Ash and Guyer, disputes were referred to the evaluators by the parties or by court order. During the course of the evaluation, 14 percent of the cases were settled and after the evaluators’ recommendations were delivered, a further 69 percent reached an agreement or dropped petitions to modify existing arrangements. (Ash and Guyer, note 230 at 145.) Writing in 1994 about expert evaluations in general, Janet Johnston estimated that 70% to 90% of disputes settle after receiving the recommendations. (Johnston, note 119 at 178.) See also Saini, “Evidence Base of Custody and Access Evaluations” note 230.

[247]Gary W. Austin and Peter G. Jaffe, “Clinical Comments on Linton v. Clarke” (1995) 10 R.F.L. (4th) .

[248] Courts of Justice Act, R.S.O. 1990, c. C.43, s. 112.

[249] Barbara J. Fidler and Rachel Birnbaum, “Child Custody Disputes: Private and Public Assessments” (2006) 25 C.F.L.Q. 137 at 155; Rachel Birnbaum and Helen Radovanovic, “Brief intervention model for access-based postseparation disputes: Family and court outcomes” (1999) 37 Fam.& Concil.Cts.Rev. 504 at 507.

[250] Children’s Law Reform Act, R.S.O. 1990, c. C.12. Adding the following text is one way in which the legislature might do so, while allowing the judge to prevent this informal mediation in cases in which it would be inappropriate:

32. If an application is brought in respect of custody of or access to a child, and if the Children’s Lawyer has caused an investigation to be made with regard to that child pursuant to s. 112 of the Courts of Justice Act, then the Children’s Lawyer shall confer with the parties and endeavour to obtain an agreement in respect of the matter if

(a) the court has not ordered otherwise and,

(b) in the opinion of the Children’s Lawyer, doing so would be in the best interest of the child.

[251] Ver Steegh, note 11 at 669-670.

[252]Susan Pigg, “Collaboration, not litigation; Many divorcing couples are sitting down together, along with their lawyers, to hammer out agreements” Toronto Star (Jan 28, 2009) L1 and lecture delivered by Victoria Smith, LL.B. (Toronto collaborative family lawyer) to Advanced Family Law class at University of Toronto Faculty of Law. March 23, 2010.

[253] The author has obtained a model agreement of this nature from Victoria Smith.

[254] Wanda Wiegers and Michaela Keet, “Collaborative Family Law and Gender Inequalities: Balancing Risks and Opportunities” (2008) 46 O.H.L.J. 738.

[255] Hilary Linton, “Collaborative Law: Thinking About The Alternatives” (2008) Canadian Family Law Matters 1.

[256] AFCC Task Force on Parenting Coordination, “Parenting Coordination: Implementation Issues” (2003) 41 Fam. Ct. Rev. 533; Christine A. Coates et al., “Parenting Coordination for High-Conflict Families” (2004) 42 Fam. Ct. Rev. 246; Linda Chodos, “Remarks delivered at Conference entitled ‘Family Law: The Voice of the Child’,” Law Society of Upper Canada, Toronto, March 5, 2009.

[257] Doolittle et al., note 53 at 437; Maldonado, note 8.

[258] A private online service named “Our Family Wizard” offers services which might be considered a virtual or automated form of parenting coordination. (“Our Family Wizard,” online: <http://www.ourfamilywizard.com/ofw/index.cfm> (last accessed: 20 June 2010) under the “Parents” tab.) This is arguably an example of what Richard Susskind identified as online dispute resolution, in which “the process of resolving a dispute, especially the formulation of the solution, is entirely or largely conducted by or through the internet.” (Susskind, note 127 at 219.) Another prominent example of online dispute resolution is “CyberSettle,” online: <http://www.cybersettle.com> (last accessed: 20 June 2010). See also, re computer-aided family dispute resolution: John Zeleznikow and Andrew Stranieri, “Split—Up: An intelligent decision support system which provides advice upon property division following divorce” (1998) 6 Journal of Law and Information Technology 190 and Arno R. Lodder and John Zeleznikow, “Developing an Online Dispute Resolution Environment: Dialogue Tools and Negotiation Support Systems in a Three Step Model” (2005) 10 Harv. Negot. L. Rev. 287.

[259] Arbitration Act, 1991, S.O. 1991, c. 17.

[260] Family Arbitration Regulation, note 164, s. 2(4). Regarding the origin of this provision in the Shari’a controversy of 2006, see Mohammad Fadel, “Political Liberalism, Islamic Family Law And Family Law Pluralism: Lessons From New York On Family Law Arbitration” in Joel A. Nichols ed., Marriage and Divorce in a Multi-Cultural Context: Reconsidering the Boundaries of Civil Law and Religion: Cambridge University Press, 2010) ; M. Boyd, note 234.

[261] M. Boyd, note 234 at 35 and after.; Lorne Wolfson and Sara Mintz, “Mediation and Arbitration Agreements – What you Need to Know (Paper presented to Continuing Legal Education event entitled ‘The Advanced Guide to Negotiating, Challenging, and Drafting Domestic Contracts’),” Osgoode Hall Law School, Toronto, January 20, 2010(last accessed: 20 June 2010).

[262] Wolfson, note 264.

[263] M. Boyd, note 234 at 36.

[264] Lecture delivered to Advanced Family Law class at University of Toronto Faculty of Law. March 16, 2010.

[265] Maxine N. Kerr, “Case, Settlement, and Pre-Trial Conferences” in Ontario Bar Association Continuing Legal Education ed., Using the Family Law Rules to Your Advantage 2006)

[266] Divorce Act, S.C. 1967-8, c. 24.

[267] The most important statutes for private family law disputes are the Divorce Act, note 7, the FLA, and the Children’s Law Reform Act, note 250. Child protection disputes are governed primarily by the Child and Family Services Act (Ontario), R.S.O. 1990, c. C.11. However a wide variety of other statutes are also applicable to family law disputes.

[268] Family Law Rules, note 166, R. 1(2).

[269] Ministry of the Attorney General (Ontario), Court Services Division Annual Report 2008/2009 note 239 at 32.

[270] Ministry of the Attorney General (Ontario), “Ontario’s Family Courts Structure,” online: <http://www.attorneygeneral.jus.gov.on.ca/english/family/famcourts.asp> (last accessed: 20 June 2010).

[271] These are listed in the Family Law Rules note 166, R. 1(3).

[272] Nancy E. Cooper, “Court in Kashechewan” Briefly Speaking (magazine of the Ontario Bar Association) (June 2010).

[273] Jane Spinak, “Romancing the Court” (2008) 46 Fam. Ct. Rev. 258.

[274] E.g. OBA Family Law Section, ADR Institute Of Ontario and Ontario Association Of Family Mediators, note 50 at 19: “we wholeheartedly support the concept of a specialized court to deal with only family cases.: See also Landau et al., note 6 at 5 and Harvey Brownstone, Tug Of War: A Judge’s Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court (Toronto: ECW Press, 2009) at 44.

[275] Mamo, Jaffe and Chiodo, note 44.

[276] The Honourable Mr. Justice George Czutrin, Interview conducted at Superior Court of Justice, Toronto. February 8, 2010.

[277] Czutrin, note 276; Donna Wowk, Interview conducted at Niman Zemans Gelgoot LLP, Toronto. February 22, 2010; Linda Diebel, “Family Court Crisis; Shortage of Judges is Running up Costs, Putting Lives on Hold” Toronto Star (December 9, 2007) A1.

[278] See notes 166 and 167, above.

[279] OBA Family Law Section, ADR Institute Of Ontario and Ontario Association Of Family Mediators, note 50 at 15.

[280] The Honourable Mr. Justice Emile Kruzick, Interview conducted at Superior Court of Justice, Brampton, Ontario. March 18, 2010.

[281] Czutrin, note 276.

[282] Particularly helpful in evaluating these initiatives is the published literature reports on interviews with justice system participants such as mediators, (Dawne Martens, Exploring children’s rights in custody and access (MR47045, University of Windsor (Canada) 2008) [unpublished] ; Bryna Bogoch and Ruth Halperin Kaddari, “Co-optation, competition and resistance: mediation and divorce professionals in Israel” (2007) 14 International Journal of the Legal Profession 115), lawyers, (Joanne J. Paetsch, Lorne D. Bertrand and Nicholas Bala, The Child-centred Family Justice Strategy: Baseline Information from Family Law Practitioners (Ottawa: Department of Justice (Canada), 2005), online: Department of Justice (Canada) <http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/rep-rap/2005/biflp-dbpdf/p1.html> (last accessed: 20 June 2010)), child custody assessors, (Paula J. Caplan and Jeffery Wilson, “Assessing the Child Custody Assessors” (1990) 27 Reports on Family Law, 3d Series 121) and judges. (Rachel Birnbaum and Nicholas Bala, “Judicial Interviews with Children in Custody and Access Cases: Comparing Experiences in Ontario and Ohio” (2010) 24 International Journal of Law, Policy, and the Family [forthcoming].) These “insiders” have helped researchers identify the costs of litigation and its alternatives. Turning from the employees to the users of the system, one finds pioneering work by sociologist Carol Smart and her colleagues in England, based on interviews and observations of parent litigants. (Carol Smart and Vanessa May, “Why Can’t They Agree? The Underlying Complexity of Contact and Residence Disputes” (2004) 26 Journal of Social Welfare and Family Law 347; Carol Smart et al., Residence and Contact Disputes in Court: Volume 1 (Research Report No 6/03) (London, UK: Research Unit Department for Constitutional Affairs (UK), 2003); Carol Smart et al., Residence and Contact Disputes in Court: Volume 2 (London: Department of Constitutional Affairs (UK), 2005); Smart and Neale, Family fragments?, note 9. See also Pruett, “Divorce in legal context: outcomes for children,” note 230. Also helpful is Randall W. Leite and Kathleen Clark, “Participants’ Evaluations of Aspects of the Legal Child Custody Process and Preferences for Court Services” (2007) 45 Fam. Ct. Rev. 260, in which Ohio family litigants responded to a survey about which family court interventions and programs they had found useful.) In Canada, Rachel Birnbaum and Nick Bala have interviewed children who had been represented by their own lawyers during custody and access litigation. (Rachel Birnbaum and Nicholas Bala, “The Child’s Perspective On Representation: Young Adults Report On Their Experiences With Child Lawyers” (2009) 25 Can. J. Fam. L. 11) Australia has taken a leadership role in family court reform, and the evaluative literature on these initiatives is very helpful. (McIntosh, Bryant and Murray, “Evidence of a Different Nature” note 48.)

[283] Bryant, note 46.

[284] Gerald W. Hardcastle, “Adversarialism and the Family Court: A Family Court Judge’s Perspective” (2005) 9 UC Davis J. Juv. L. & Pol’y 57.

[285] Nigel Dunlop, “The Family Mediation Pilot: Where To Now? (Originally published New Zealand Law Journal, July 2006),” online: <http://www.nigeldunlop.co.nz/WhereToNow.html> (last accessed: 20 June 2010).

[286] Moge v. Moge, note 72.

[287] Regarding the public value of adjudication, see also Owen Fiss, “Against Settlement” (1984) 93 Yale L.J. 1073.

[288] Hardcastle, note 284 ;Daniel W. Shuman, “The Role of Mental Health Experts in Custody Decisions: Science, Psychological Tests, and Clinical Judgment” (2002) 36 Fam. L.Q. 135.

[289] Smart et al., Residence and Contact Disputes, Vol. 1, note 282 at 40.

[290] Ontario Civil Legal Needs: Quantitative Research, note 59 at 49.

[291] Harris, note 189 at 36.

[292] Harris, note 189.

[293] A 2007 article suggested typical costs of $1500-$6000 for a social worker assessment, and $3,000 to $20,000 or more for a psychologist assessment. (Nicholas Bala, Mohan, Assessments & Expert Evidence: Understanding the Family Law Context. (Queen’s Faculty of Law Legal Studies Research Paper Series, Working Paper No. 07-02) (Kingston, Ontario: Social Science Research Network, 2007), online: Social Science Research Network <http://ssrn.com/abstract=989761> (last accessed: 20 June 2010) at 25. Online: Social Science Research Network, http://ssrn.com/abstract=989761).

[294] Above, II. A. Economic Vulnerability of Canadian Families.

[295] Table 1-7: Median market income by selected family types — Ontario (2007 figures) (Ottawa: Statistics Canada, 2009), online: Statistics Canada <http://www.statcan.gc.ca/pub/75-202-x/2007000/t163-eng.htm> (last accessed: 20 June 2010).

[296] The 2007 figure was multiplied by 1.0099116322 to reflect two years of the average 1998-2007 income growth.

[297] Sauvé, note 61 at 12.

[298] See section II. B. Sacrifices in Earning Potential Undertaken in Intact Families, above.

[299] McMurtry et al., note 2 at 42.

[300] Diebel, note 277.

[301] Ontario Civil Legal Needs: Quantitative Research, note 59 at 46.

[302] See notes 185 and 186, above.

[303] Geremia v. Harb, [2008] O.J. No. 1716, 54 R.F.L. (6th) 274, 90 O.R. (3d) 185.

[304] Schepard, note 53 at 105.

[305] Lassonde, note 128. One child asked why a single-line email from a lawyer cost that child’s parent $100.

[306] Noel Semple, “The Silent Child: A Quantitative Analysis of Children’s Evidence in Canadian Custody and Access Cases” (2010) 29 C.F.L.Q. 1 at 13.

[307] Ronda Bessner, The Voice of the Child in Divorce, Custody and Access Proceedings (Ottawa: Department of Justice (Canada), 2002), online: Department of Justice (Canada) <dsp-psd.communication.gc.ca/Collection/J3-1-2002-1E.pdf> (last accessed: 20 June 2010) at 56; Nicholas Bala, “Child Representation in Alberta: Role and Responsibilities of Counsel for the Child in Family Proceedings” (2006) 43 Alta. L. Rev. 845; Pearson and Gallaway, For the Sake of the Children, note 54 at Chapter 2, Section B.

[308] Interview with Dr. A, a Toronto psychiatrist who regularly conducts child custody and access assessments. February 4, 2010.

[309] Semple, “The Silent Child” note 306.

[310] Bala, Mohan, Assessments & Expert Evidence, note 293 at 36.

[311] Brownstone, note 274 at 12; Emery, Sbarra and Grover, “Divorce Mediation: Research and Reflections,” note 117 at 35; Freeman, note 8 at 104; Hardcastle, note 284 ;at 66; Janet Weinstein, “And Never the Twain Shall Meet: The Best Interests of Children and the Adversary System” (1997) 52 U.Miami L.Rev. 79; Pruett and Jackson, “Lawyer’s Role,” note 230.

[312] Schepard, “Public Health Perspective,” note 53 at 95 and 105; Doolittle et al., note 53 at 426 and 430; Kelly and Emery, “Children’s Adjustment Following Divorce: Risk and Resilience Perspectives,” note 53 at 353.

[313] 231 of the 288 judges received this amount; 21 judges were paid more than this amount and 36 were paid less. The average total remuneration of all OCJ judges was $246,653.35. (Ontario Ministry of Finance, Disclosure for 2009 under the Public Sector Salary Disclosure Act, 1996: Judiciary (Toronto: Queen’s Printer for Ontario, 2010)).

[314] Judges Act,, R.S., 1985, c. J-1, ss. 12(d) and 25.

[315] Judicial Compensation and Benefits Commission, Final Report And Recommendations Of The Third Quadrennial Commission (Ottawa: Judicial Compensation and Benefits Commission, 2008), online: Judicial Compensation and Benefits Commission <http://www.quadcom.gc.ca/Media/Pdf/2007/RapportFinalEn.pdf> (last accessed: 20 June 2010) at 25 and FN78.

[316] This definition is harmonious with the first two definitions of the word “administration” in Black’s Law Dictionary, 7th Ed: ““1. The management or performance of the executive duties of a government, institution, or business. 2. In public law, the practical management and direction of the executive department and its agencies.” (Henry Campbell Black and Bryan A. Garner, Black’s law dictionary, 7th ed. (St. Paul, MN: West Publishing, 1999) at 44. )

[317] Rogerson and Thompson, Spousal Support Advisory Guidelines (Final Version), note 69.

[318] Federal Child Support Guidelines, P.C. 1997-469.

[319] Federal Child Support Guidelines, note 318 at s.9 and s.4.

[320] Federal Child Support Guidelines, note 318 at s. 7.

[321] Federal Child Support Guidelines, note 318 at ss. 16 to 19 and Schedule III.

[322] Family Law Rules, note 166, Rule 17(8)(b).

[323] Ontario Ministry of Community and Social Services, “About the Family Responsibility Office,” online: <http://www.mcss.gov.on.ca/en/mcss/programs/familyResponsibility/> (last accessed: 20 June 2010).

[324] Ontario Ministry of Community and Social Services, note 323.

[325] FLA, note 23 s. 35

[326] Family Responsibility and Support Arrears Enforcement Act 1996 (Ontario), S.O. 1996, c. 31, (“FRSAEA”), s. 1(1): definition of “support order.”

[327] FRSAEA, note 326.

[328] FRSAEA, note 326, Part V.

[329] FRSAEA, note 326, Part VI.

[330] Ministry of Community and Social Services (Ontario), “FRO Facts: How the Program Works,” online: <http://www.mcss.gov.on.ca/en/mcss/programs/familyResponsibility/factSheets/howProgramWorks.aspx> (last accessed: 20 June 2010).

[331] Ministry of Community and Social Services (Ontario), “Good Parents Pay,” online: <www.goodparentspay.com> (last accessed: 20 June 2010)

[332] FLA, note 23, 33(3).

[333] FLA, note 23, s. 39.1.

[334] Robinson, note 106.

[335] Statistics Canada, Maintenance Enforcement Programs in Canada: Description of Operations, 1999/2000, Catalogue no. 85-552-X (Ottawa: Statistics Canada, 2002), online: Statistics Canada <http://dsp-psd.pwgsc.gc.ca/Collection-R/Statcan/85-552-XIE/0010085-552-XIE.pdf> (last accessed: 20 June 2010).

[336] Statistics Canada, note 335.

[337] Paul Robinson, Child and Spousal Support: Maintenance Enforcement Survey Statistics; Catalogue no. 85-228-X (Ottawa: Statistics Canada, 2009), online: Statistics Canada <http://dsp-psd.pwgsc.gc.ca/collection_2009/statcan/85-228-X/85-228-x2010000-eng.pdf> (last accessed: 20 June 2010) at 7.

[338] Divorce Act, note 7 at 25.1 (1)(b).

[339] Department of Justice (Canada), “Inventory of Government-based Family Justice Services: Support Recalculation Services,” online: <http://canada.justice.gc.ca/eng/pi/fcy-fea/lib-bib/tool-util/apps/fjis-rsgjf/sch-rch.asp?type=6> (last accessed: 20 June 2010).

[340] Justice and Attorney General (Albeta), “Child Support Recalculation Program,” online: <http://justice.alberta.ca/programs_services/families/recalculation/Pages/default.aspx> (last accessed: 20 June 2010).

[341] Dena Bonnet, “Recalculating D.B.S.: Envisioning a Child Support Recalculation Scheme for Ontario” (2007) 23 Can. J. Fam. L. 115; IHRD Group, Research Report: Family Justice Services Western Final Evaluation: Department of Justice Canada, online: Department of Justice Canada <http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/rep-rap/2005/2004_8/p1.html> (last accessed: 20 June 2010).

[342] Child Support Service Regulations (Newfoundland), N.L.R. 31/07, under the Family Law Act.

[343] IHRD Group, note 341.

[344] IHRD Group, note 341 at 33.

[345] IHRD Group, note 341 at 54.

[346] Divorce Act, note 7 at 25.1(1)(a).

[347] Department of Justice (Canada), “Inventory of Government-based Family Justice Services: Support Establishment Services,” online: <http://canada.justice.gc.ca/eng/pi/fcy-fea/lib-bib/tool-util/apps/fjis-rsgjf/brows-fure.asp?type=5> (last accessed: 20 June 2010).

[348] An Act To Facilitate The Payment Of Support,, R.S.Q., c. P-2.2, ss.2-3.

[349] An Act To Facilitate The Payment Of Support, note 348 at s. 36.

[350] The frequency with which family lawyers encounter enforcement issues is reflected in the practitioner-oriented scholarship, e.g. Ann C. Wilton and Judy S. Miyauchi, Enforcement of family law orders and agreements : law and practice (Agincourt, Ont.: Carswell, 1989+ (looseleaf)).

[351] Law Reform Commission of Canada, Working Paper 1, The Family Court (Ottawa: Law Reform Commission of Canada, 1979) at 50-51.

[352] Robinson, Profile of Child Support Beneficiaries note 106.

[353] Robinson, MEP Survey Statistics note 337.

[354] Office of the Auditor General of Ontario, Family Responsibility Office: Follow-up (Toronto: Auditor General of Ontario, 2005), online: Auditor General of Ontario <http://www.auditor.on.ca/en/reports_en/en05/403en05.pdf> (last accessed: 20 June 2010) at 304.

[355] Millar, note 79.

[356] Millar, note 79, Chapter 5.

[357] Statistics Canada, “Survey of Labour and Income Dynamics (SLID),” online: <http://www.statcan.gc.ca/cgi-bin/imdb/p2SV.pl?Function=getSurvey&SDDS=3889&lang=en&db=imdb&adm=8&dis=2> (last accessed: 20 June 2010).

[358] Millar, note 79 at 104.

[359] See IV. B. 3. Status Quo in Other Provinces, above.

[360] Millar, note 79 at 119.

[361] See above.

[362] Shelley Kierstead, Retroactive Child Support: Benefits and Burdens (Ottawa: Children and Youth Section Department of Justice Canada Family, 2009), online: Department of Justice <http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/tool-util/topic-theme/rcs-par/pdf/rcs-par.pdf> (last accessed: 20 June 2010).

[363] See also Kierstead, Retroactive Child Support: Benefits and Burdens, note 362; Bonnet, note 341.

[364] Andre Marin, It’s All in the Name (Toronto: Ombudsman Ontario, 2006), online: Ombudsman Ontario <http://www.ombudsman.on.ca/media/3286/its_all_in_the_name_20060809.pdf> (last accessed: 20 June 2010).

[365] Marin, note 364 at para 28.

[366] Marin, note 364 at para 40.

[367] Marin, note 364 at paras 41-47.

[368] Marin, note 364 at para 5.

[369] For example, despite FRO’s extensive powers, $1.3 billion in Ontario family support arrears remained outstanding in 2005. (Office of the Auditor General of Ontario, at 304). See above, at page.

[370] Provincial Auditor, 3.03–Family Responsibility Office, in 2003 Annual Report, note 234 at 70.

[371] Office of the Auditor General of Ontario, at 305.

[372] Trevor Farrow, “Public Justice, Private Dispute Resolution and Democracy ” in Ronalda Murphy & Patrick A. Molinari eds., Doing Justice: Dispute Resolution in the Courts and Beyond (Ottawa: Canadian Institute for the Administration of Justice 2009) 301 at section IX.A; Fiss, note 287.

[373] 1985, c. 4 (2nd Supp.), at s. 15.

[374] See above, at footnotes 319 and 320.

[375] e.g. Constitution Act, 1867 at s. 92(13): “In each Province the Legislature may exclusively make Laws in relation to … Property and Civil Rights in the Province.”

 

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