IV. A. Responding to Challenges After Relationship Breakdown
Even if preventative initiatives are pursued, relationship breakdown will continue to confront Ontarians with legal and financial challenges. This section will address techniques for responding to these challenges after they arise. It will begin with the least adversarial methods, and work towards traditional civil litigation. Section D, below, will consider the costs and benefits of administrative responses to family challenges. With regard to all potential responses to relationship breakdown, a key fact is that, as the Law Commission’s Consultation Paper noted, family problems come in “clusters.” For example, while parenting disputes are fundamentally different from financial disputes, they present themselves within the same families, and family courts must respond to them together. More broadly, family law problems “cluster” with other types of legal problems. The Ontario Civil Legal Needs Project Report identified family relationship issues as among the types of legal problems which are most likely to be experienced in tandem with other legal problems.
IV. A. 1. Supplying Legal Information to the Public
Legal information can be defined to include both substantive information about family law, and information about legal procedures and dispute resolution options. Legal information is distinct from legal services which are personalized and provided directly by professionals. The provision of legal information is very inexpensive, by comparison to other government responses to post-relationship challenges. Information, once created, can be reproduced for very little cost for an unlimited number of users. Moreover, unlike legal services, ADR, or litigation, consuming legal information has little or no cost for the individuals who access it (assuming that the government provides for free.) From a cost-benefit analysis point of view, state initiatives to create legal information are worth undertaking even if they have only modest benefits for Ontarians experiencing family challenges. In other words, because the cost is small, only a small benefit need be demonstrated for legal information. Very real benefits do seem to be offered by family legal information initiatives, and the government has responded with what is already a fairly comprehensive campaign. However, this section will propose a few initiatives which might make a broader range of legal information accessible to a broader range of Ontarians.
Ontario made substantial investments in providing legal information about family challenges this area. Family Law Information Centres (FLIC) are found in all of our family courts. These contain brochures and other documents. Some but not all FLICs are staffed by employees who provide general information about the system. Law Help Ontario, at the 361 University Ave. court in Toronto, offers information to self-represented litigants using an innovative combination of lawyers and written information. The province has also provided funding for internet-based family information initiatives. Statutes and case law are increasingly available for free online. The Ministry of the Attorney General has recently expanded its “Family Law Resources” page, which now includes a comprehensive “frequently asked questions” section and pictures of sample courtroom layouts. The Ontario Civil Legal Needs Project asked Ontarians about their familiarity and experiences with five public information services. They found that “although only 1 to 8 per cent of those surveyed had heard of any of the websites, their satisfaction levels were very high (81 per cent and higher).” This suggests that the quality and utility of these public information sources is very good, but the government needs to put more effort into publicizing them, so that more Ontarians may benefit.
More narrowly-focused online initiatives include the Family Law Education for Women (FLEW) site. The central message of the FLEW site is that all Ontarians, regardless of ethnic background or family situation, have the right to the protection of our family law statutes. The FLEW website appears to provide information which helpful and accurate for both women and men. It is unclear why it is branded as being “for women,” given that our statutes and case law apply equally to men and women and given that men and women both need information about family law. Given that this web-site is funded by the provincial government, the government should ask that it be rebranded to emphasize its utility to all Ontarians.
The internet appears to be the most logical medium for delivering family law information to Ontarians. The Ontario Civil Legal Needs Project found that, even among low- and middle-class Ontarians, 84% have access to the internet. However, most of the internet-based legal information initiatives identified above are predominantly text-based. (FLEW is an exception, providing audio streams of information and sign-language videos.) Given that many Ontarians have limited English literacy, the province should consider providing family law information on websites in video format.
Parent Information Sessions are group classes in which information about separation and family law are presented through oral presentations and videos. These are mandatory in Toronto’s Superior Court of Justice and are available on a voluntary basis in certain other family courts. Parenting information sessions are soon to be launched in the Brampton family court. Based on the author’s observations, there is a fairly limited degree of interactivity in these sessions. Participants are allowed to ask some questions but queries about the specific facts of a case are discouraged and the primary mode is one-way provision of information from the leaders to the participants. For this reason, these programs are more appropriately classified as “legal information” rather than “legal services.”
The literature is somewhat ambivalent about the benefits of Parent Information Sessions, which are usually evaluated (if at all) in terms of whether or not they reduce litigation. Ellis and Anderson (2003) reviewed the literature and conducted their own study of Family Information Sessions being held in Ontario at that time for divorcing parents. Their conclusion was that these programs reduce use of court resources by inducing settlement. However, not all research on these programs has replicated the results about reduced use of court resources. Versaevel studied a voluntary parent education program in Washoe County, Nevada. She reviewed the court files of litigants who had and who had not participated in the classes, and concluded that “no clear correlation could be found that supported the idea that parent education classes could help resolve matters faster.” Shelley Kierstead compared a sample of litigants who had attended a program with a control group which had not. She found that, although there were significant differences between the two groups with regard to certain elements of litigiousness, “considered as one combined variable, there was statistically significant difference in litigiousness between the sample group and the control group.” A more comprehensive evaluation of Parenting Information Sessions is necessary before their publicly-funded expansion can be recommended.
A great deal of legal information which would be useful to Ontarians at the time of relationship breakdown remains inaccessible to them or expensive enough to be beyond the reach of most self-represented middle class litigants. For example, the Law Society of Upper Canada (LSUC) conducts Continuing Legal Education seminars, for which lawyers write research papers without compensation. LSUC has an online archive of all of these papers, and a database of video-recordings from the seminars. However, these are not publicly available for free, despite the fact that LSUC does not generally compensate the lawyers who deliver the seminars and write the CLE papers. For example, LSUC held a four hour “Six Minute Family Lawyer” program in December 2009, which provided a broad overview of key issues in family law. This program is archived online, but costs $150.00 to access. Most other family law CLE programs cost even more. In light of LSUC’s statutory duty to “act so as to facilitate access to justice for the people of Ontario” and “protect the public interest,” the province should ask LSUC to make family law CLE materials publicly available for free or reduce their prices. If this is not possible, these CLE materials should at least be made available in Ontario’s public libraries.
The Spousal Support Advisory Guidelines (SSAG) have quickly become a central feature of spousal support law in Canada. However, by comparison to the Child Support Guidelines, the SSAG are relatively complex and difficult for many self-represented litigants to use. Determining a spousal support entitlement using the “with child support” formula in the SSAG would require either advanced math skills or access to software such as DivorceMate. Using DivorceMate to calculate a single spousal support entitlement costs at least $350. The provincial and federal governments should cooperate in creating free on-line software to calculate Spousal Support Advisory Guidelines ranges.
Richard Susskind has noted that people who have legal rights or obligations are often unaware of them. This point seems particularly true in the family law context. For example, the matrimonial home remedies provided by Part II of the Family Law Act are probably not front of mind for individuals at the time of relationship breakdown. However the rights provided therein, such as the equal right of spouses to possess the matrimonial home, are potentially very valuable. Susskind proposes that the state might proactively provide legal information to citizens at the time when they need it, using biographical information about the individual possessed by the state:
once an individual builds up a profile of his or her activities, or joins communities, whether open or closed, of people with shared interests, then distilled, relevant, and tailored briefings will be sent to them. In this way, citizens may be urged to be proactive.
Marriage and child-birth might be examples of activities which would trigger “tailored briefings.” When an Ontarian citizen gets married or becomes a parent, the province could send an information package by email or post. This package would, among other things, identify family law issues which that citizen might eventually encounter. While privacy concerns would be a possible impediment to such an initiative, the idea is certainly an intriguing option for providing legal information about family challenges to Ontarians.
IV. A. 2. Increasing the supply and affordability of legal services