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.”[154] 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.[155]
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.[156] 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.[157] 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.[158] The province has also provided funding for internet-based family information initiatives. Statutes and case law are increasingly available for free online.[159] 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.[160] The Ontario Civil Legal Needs Project asked Ontarians about their familiarity and experiences with five public information services.[161] 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).”[162] 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.[163] 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.[164] 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.[165] 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[166] 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.[167] Based on the author’s observations,[168] 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.[169] 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.[170] 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.”[171] Shelley Kierstead compared a sample of litigants who had attended a program with a control group which had not.[172] 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.”[173] 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,[174] 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,”[175] 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.[176] 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.[177] Using DivorceMate to calculate a single spousal support entitlement costs at least $350.[178] 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.[179] 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.[180] However the rights provided therein, such as the equal right of spouses to possess the matrimonial home,[181] 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.[182]
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
No matter how comprehensive and accessible, legal information is not a complete substitute for personalized legal services.[183] Services can be offered by lawyers, or by other professionals such as paralegals and social workers who have experience working with the family justice system. A central finding of the LCO’s public consultations is that there is a broad diversity of different “entry points” to the family justice system, staffed by a wide variety of different professionals who provide services and information.[184]
However, large numbers of Ontarians use the family justice system with little if any personalized assistance. The Ontario Bar Association recently found that that 40% of all civil litigants lack lawyers, and that the rate of self-representation among family litigants is even greater than this average.[185] In 2009, another report stated that approximately 70% of family litigants are unrepresented.[186] While some of these individuals do not wish to be represented, many if not most would like to have legal representation but do not believe that they can afford it.[187] A survey of Kingston family court litigants without lawyers published in 2005 found that 83% stated that they were unable to afford the legal fees.[188]
The actual cost of family legal services varies widely. A survey of lawyers conducted by Canadian Lawyer magazine found that the average legal fee for a contested divorce in Ontario is $12,602. The average fee for a civil case culminating in a two-day trial was $45,477.[189] However, it also appears that many Ontarians obtain more affordable legal services, probably because their matters are not “contested” and do not culminate in trials. A 2009 telephone survey conducted for the Ontario Civil Legal Needs Project identified low- and middle-class Ontarians who had sought legal assistance for a non-criminal matter in the previous three years.[190] Among those who had obtained legal services, 28% said that the services were free, and an additional 19% said that they paid less than $1,000.[191] Legal Aid Ontario reported that, in 2008-2009, the cost of the average family client funded by that agency was $1826.00.[192]
Nevertheless, the OCLN survey also found that many individuals experiencing family challenges have particular difficulty accessing legal services. 81% of those who had experienced this type of challenge in the previous three years had sought legal services, but 30% of those who did so “had difficulty” in obtaining it.[193] Among low-and middle-class Ontarians who had a civil justice problem but did not seek legal assistance, the perceived cost of lawyers was by far the most common reason for not doing so.[194] Lowering the cost of legal services would make them more accessible to Ontarians experiencing post-separation family challenges. Having access to experienced and competent professional help would certainly reduce the strain which family challenges place on Ontarians in this position. There are a variety of initiatives by which the province might lower the cost of legal services, each of which has a distinct set of costs and benefits.
One obvious option would be to increase the supply of legal aid available for family law disputes. Legal aid allows individuals to obtain the services of a lawyer paid by the government. These services are available for family law matters through the Family Law offices run by Legal Aid Ontario (LAO). [195] In 2008-2009, LAO issued 30,107 certificates for family matters, spending $50,755,000.00 on these services.[196] However, it is very difficult to obtain comprehensive LAO-funded representation for private family law disputes which do not include child protection or criminal elements.[197] One recent report claimed that “over the past decade there has been a 30% drop in lawyers accepting certificates from family law clients who qualify for legal aid.”[198]
One of the most intriguing findings of the OCLN survey was that “One in three respondents … said they prefer to resolve their legal needs by themselves with legal advice, but not necessarily with the assistance of a legal professional.”[199] The provincial government might wish to respond by de-emphasizing funding of comprehensive legal representation in favour of providing more limited legal services to a broader group of people. Examples of these more limited services include LSUC’s a telephone Lawyer Referral Service which offers members of the public a free 30 minute consultation with a lawyer.[200] Other forms of free legal services currently available in Ontario family courts include duty counsel and volunteer law student assistance from the Pro Bono Students Canada Family Law Program. Another way to make public dollars go further is to subsidize legal clinics which provide limited family legal services at a reduced and predictable rate. Many Ontarians who are unable to afford family legal services as they are currently structured would be able to pay a smaller and more predictable amount. For example, Atlanta’s Family Law Information Centers offer 30 minute consultations which in some cases carry a nominal fee of roughly $10.[201]
Publicly-funded personalized legal services can also be provided remotely, and the government should explore this possibility. The LSUC Lawyer Referral Service mentioned above[202] might be complemented by a website to which Ontarians could submit queries about family disputes. Many questions could be answered by paralegals or workers in low-cost jurisdictions abroad; this would allow a more expansive service to be provided at a lower cost.[203]
If the government wishes to reduce the cost and increase the accessibility of legal services without further public expenditure, then it might consider lowering the barriers to the private-sector provision of legal services.[204] At present, the Solicitors Act makes it illegal for anyone not “admitted and enrolled as a solicitor” to represent another individual in court.[205] This rule (which has very limited exceptions) has made it very difficult for paralegals or others to provide legal services to Ontarians experiencing family challenges. Canada’s Competition Bureau has argued convincingly that “law societies should neither prohibit related service providers (such as paralegals…) from performing legal tasks, nor limit their ability to do so, unless there is compelling evidence of demonstrable harm to the public.”[206] Whether there is sufficient evidence of demonstrable harm in this case is an open question.
The province subjected paralegals to LSUC regulation in 2007,[207] despite the Competition Bureau’s warning that “to the extent that paralegals need to be regulated, the proper avenue for this is not through the law societies, given the obvious conflict of interest that arises from having one competitor regulate another.”[208] In May of 2010 a resolution was briefly brought before the LSUC annual general meeting which would have opened a discussion about authorizing paralegal family law practice.[209] This proposal was met with fierce opposition from Ontario lawyers, and was withdrawn before being considered.[210] The objection of many lawyers to paralegal family law practice was summarized by Mary Reilly, treasurer of the Family Lawyers Association of Ontario:
Our concern is that family law is extremely complicated. You have to have knowledge of a lot of different pieces of legislation. It isn’t a case of just giving them a couple of courses, and they’re up to speed.[211]
Certain areas of family law are more complicated than others, and Reilly’s argument might be more valid for some areas than for others. One option would be to allow paralegal practice with regard to child support and custody and access, which are not, in most cases, legally complex. Property division, spousal support, and other issues could be reserved for lawyers. These latter issues are both more complex and more likely to be relevant by wealthier individuals who are better able to afford lawyers’ fees.
Short of licensing paralegal family law practice, there are various other ways in which the province might make it easier to provide family legal services. For example, LSUC might consider waiving the articling requirement for law school graduates wishing to practice family law. Family lawyers might be exempted from some of the obligations which the Law Society places on lawyers which increase the cost of doing business, such as the new continuing professional development requirement.[212] It is at least possible that Ontario lawyers are actually overqualified for the average family law dispute experienced by lower- and middle-class Ontarians. If so, and if reducing qualification requirements would increase the supply of family legal services and thereby lower their price, the Law Society and the government should consider doing so.[213]
The cost of such initiatives would take the form of lowered standards, which might or might not translate into less satisfactory services being provided to clients. The value of having competent, knowledgeable, and dedicated people working in the system should not be underestimated. Julie Lassonde reported that one of the reasons why the LCO’s public consultations succeeded in bringing together individuals with divergent perspectives on highly emotional matters was the trust relationships which those individuals had with their lawyers and other service providers.[214] These lawyers and service providers were able to convene round-table meetings and focus groups. This attests to the profound value of high-quality, personalized service in dealing with family challenges.
As important as high quality services are, it is not clear that law school and the LSUC bar admission course are necessary and sufficient preparation for providing services of this nature to Ontarians experiencing post-relationship family challenges. One interesting point of reference regarding the value of lawyers’ services versus other services is a report authored by Rae Kaspiew and her colleagues evaluating Australia’s 2006 Family Law reforms.[215] Individuals who had used the family justice system and had obtained services from lawyers and/or non-lawyers were asked whether they would recommend the services they obtained. Lawyers did not produce higher rates of client satisfaction than most of the alternative service providers.[216] It would be very useful to study the satisfaction rates of Ontario clients of family lawyers and alternative family service providers.[217] Such a study might confirm or deny the proposition that only licensed lawyers are capable of providing useful legal services to Ontarians experiencing family challenges.[218]
Another option is to restructure the way in which legal services are provided. In the traditional model, a lawyer is retained to represent a client until the client’s legal problem is resolved. Fees are calculated on an hourly basis. While the client may withdraw from this arrangement at any time, he or she often has little idea at the outset how much it will cost to resolve the problem. In addition to the hourly rate itself, the unpredictability of the final bill is one of the factors which make legal services seem unaffordable to middle class Ontarians. Richard Susskind proposes an alternative to this model, which would involve a lower and more predictable price tag for the consumer:
decomposing legal work that has been, or should be undertaken … into constituent tasks and allocating these to the least costly sources of service that we can find, so long as this multi-sourcing and mass customization does not fail to deliver the requisite quality of guidance that the non-lawyer needs.[219]
“Unbundling” of legal services has been identified by the Ontario Civil Legal Needs project as a possible way to increase affordability.[220] This would allow clients to do some things for themselves while obtaining legal assistance for the most challenging portions of litigation (such as oral advocacy.) The Ontario government should work with the Law Society to encourage the provision of unbundled family law services, provided that doing so would make them more accessible without excessively reducing quality.
IV. A. 3. Alternative / Appropriate Dispute Resolution (ADR)
ADR can be defined as any structured dispute-resolution process other than courtroom adjudication. While the “A” in ADR once stood for “alternative,” it is increasingly being used to stand for “appropriate.”[221] This signifies that adjudication is no longer the privileged or primary avenue for the resolution of family law disputes.[222] However, the word “appropriate” also leaves open the possibility that a litigation process may in some cases be more appropriate than other alternatives. For example, it has been argued that, at least in cases of power imbalance of domestic abuse, the structured environment of a court-room offers the best opportunity for the rights and interests of vulnerable parties to be protected.[223]
The rise of ADR in family law can be traced to the “divorce revolution” which began in the late 1960s. As a result of legal and social changes, courts were newly confronted with large numbers of family disputes.[224] They responded, in part, by experimenting with a wide variety of programs and interventions, the primary purpose of which was to encourage settlement.[225] These public sector, court-connected programs and interventions were an early form ADR, although most ADR in Ontario today is conducted in the private sector.
The continuing demand for ADR services is created by the fact that family litigation is very expensive for the parties, their children, and the state. Scholars, policy-makers, and Canadians confronting family challenges therefore look for other ways of resolving family disputes which impose fewer costs.[226] Nor is the case for ADR made exclusively by critics of lawyers — lawyers themselves are embracing it.[227] For example, the Ontario Bar Association Family Law Section, a group of lawyers, recently joined with two ADR organizations in calling for “non-adversarial options” to become the “primary framework for resolving family matters.”[228]
Today, the most common forms of ADR in the Ontario family law context are collaborative family law, mediation, and arbitration. The latter two may be practiced independently of each other, or may be combined as mediation-arbitration (“Med-Arb”).[229] Beyond these core techniques, some scholars would give ADR a broader definition, for example including solicitor negotiation or custody evaluation under this rubric.[230]
The evaluation literature has sought to weigh the costs and benefits of different types of ADR. Commonly, a specific type of mediation, assessment, or parent education is evaluated in terms of the number of cases which settled during or immediately after the process.[231] While these studies often have very small sample sizes,[232] they do help establish what programs help reduce the costs of litigation. Qualitative techniques such as interviews and surveys have been deployed in some of these evaluations in order to more comprehensively analyze costs and benefits.[233] Comprehensive qualitative evaluations of family process are more labour-intensive than quantitative reports on settlement rates, and is therefore often conducted by the state itself[234] or with public funding.[235] While such small scale pilot projects are perhaps the most common method by which costs and benefits of alternative mechanisms have been studied, a valuable set of sources go beyond assessing a single program. Experiments and literature about costs and benefits have originated in state- and province-wide initiatives[236] and in partnerships between universities and courts.[237] Inter-jurisdictional comparisons are rare, but very helpful when they do appear.[238]
Mediation is perhaps the oldest and most widespread form of ADR used for family challenges. In Ontario, free court-adjunct mediation is available in the 17 court-houses which are part of the Family Court Branch of the Superior Court of Justice (also known as the “unified family court.”)[239] Mediation is also available at many of the other family courts. Full or partial settlement is reached in 79 percent of Ontario family mediations.[240] Mediation is usually less costly and more therapeutic than litigation,[241] and there is some evidence that resolutions reached using this dispute-resolution technique are more durable than those which are the result of adjudication.[242] Jennifer McIntosh and her colleagues compared found that including children in mediation produced more durable agreements.[243] On the other hand, mediation may produce unjust results in the many cases in which power imbalances and/or domestic violence are factors.[244]
From a cost-benefit point of view, the great advantage of mediation is that it can produce durable settlements using a very small resource input. The parties need not have lawyers to participate in mediation. A successful mediation obviates the need for future judicial intervention, thereby potentially saving public resources given that mediators are much less costly to the taxpayer than judges are. These facts make mediation a very compelling option in an environment of resource scarcity like that which prevails in the Ontario family justice system. The provincial government should ensure that free or affordable mediation is available to all Ontario family litigants for appropriate cases.
Child assessment by mental health professional or social worker in a parenting case can arguably be considered another form of ADR. This categorization is questionable because the primary function of assessors is to identify and recommend the parenting arrangement which would be in the best interests of a child or children .[245] This evaluative function is distinct from the dispute-resolution function which is at the core of ADR. However, there is substantial evidence that neutral assessments generally speed the parties to a negotiated resolution. [246] Assessments sometimes produce settlement incidentally,[247] and sometimes they do so because the assessor consciously tries to achieve this result. The provincial government funds child assessments conducted by social workers from the Office of the Children’s Lawyer.[248] Although the applicable statute defines these assessments as purely evaluative or forensic in nature, there is compelling evidence that these social workers also encourage the parties to settle by engaging in informal mediation.[249] These informal mediation efforts by the OCL’s social workers in custody and access cases should be encouraged in appropriate cases, because early settlement of the case is usually in the best interests of the child. A new section should be added to the Children’s Law Reform Act which acknowledges and protects the mediative function of OCL social workers in custody and access cases.[250]
Collaborative family law (CFL) is a relatively new initiative,[251] which is quickly gaining adherents in Ontario.[252] The distinguishing feature of collaborative family law is the “Collaborative Practice Participation Agreement.”[253] This contract prevents the lawyers involved from representing the parties if litigation occurs and which also commits everyone involved to a cooperative and constructive approach to dispute-resolution. CFL seems to consistently produce durable settlements while avoiding litigation. However CFL is not itself without costs. Insofar as it requires the parties to both retain lawyers as well as, often, other professionals, it is beyond the financial reach of most Ontarians. Like mediation, it may lead to vulnerable parties settling for markedly less than they might obtain at trial,[254] insofar as it de-emphasizes legal entitlements in favour of interest-based negotiation.[255] While CFL is certainly a valuable option for Ontarians who can afford it, it is not clear that the provincial government should be involved in its provision.
Parenting coordination generally takes place after a parenting agreement or order is in place between separated parents.[256] A parenting coordinator is generally tasked with mediating and arbitrating smaller disputes about parenting between the parties so as to avoid recourse to litigation, and with ensuring regular and conflict-free access visits.[257] In some jurisdictions “special masters” are appointed by the court and have similar functions.[258] In Ontario, however, parenting coordinators are usually empowered by an agreement between the parties. Like CFL, parenting coordination is useful for those who can afford it, but it is not a realm in which the provincial government has a direct role to play.
Arbitration is the form of ADR which is most similar to litigation. In arbitration, the parties sign an “arbitration agreement” which empowers a third party to resolve their dispute. Arbitration may or may not be preceded by a “mediation phase,” in which the arbitrator seeks to mediate the dispute. If so, it is known as “mediation-arbitration,” or “Med-Arb.” In Ontario the Arbitration Act governs arbitrations generally.[259] The Family Arbitration regulation, among other things, requires that those who arbitrate family disputes have certain types of training. This regulation also requires all family arbitrations to be conducted in accordance with the law of Ontario or the law of another Canadian jurisdiction.[260] Arbitration (with or without a prior mediation phase) offers the parties finality, the ability to craft an appropriate procedure for each case, and an expert decision-maker.[261] However arbitration’s confidentiality may inhibit the development of the law, insofar as the decisions are not reported and cannot be used as precedents. Private arbitration is not available to most Ontarians due to the paucity and high fees of the specialist lawyers who provide this service.[262]
Nonetheless, arbitration proponents say that it is actually less costly to the litigants than courtroom litigation is, despite the fact that private arbitration requires the parties to pay the arbitrator.[263] In a recent lecture, prominent Toronto arbitrator Lorne Wolfson identified two key reasons for this cost advantage.[264] First, arbitrators are experts in family law, and need not be “educated” by the parties’ lawyers. By contrast, some judges are generalists, and if so the parties must pay their lawyers to prepare and present submissions educating the judge about the applicable law. Second, Mr. Wolfson stated that arbitrators can dedicate large chunks of time to a single case – up to a full day at a time. A judge, on the other hand, can often only allocate 1 hour at a time to a case or settlement conference in a family law dispute.[265] Because one hour is seldom sufficient, the parties must return weeks or months later. Their lawyers must then be paid to learn the case and travel to court again.
If it is true that family arbitration is cheaper for the litigants than going to court, this might point to substantial cost savings which might be achieved through family court reform. If family judges were all specialists, and if they were allowed to allocate longer continuous stretches of time to each case, then it is possible that the total number of court room hours spent per case could be dramatically reduced. This could, in turn, create substantial and immediate public savings. Ontario should explore the possibility that features of the private family law arbitration system might be imitated by the public court system.
IV. A. 4. Litigation
Litigation might be considered the “last line of defence” in Ontario’s response to the challenges arising upon intimate relationship breakdown. Today, Ontario’s family and general courts administer a system of statutes and common law rules which has been totally re-written since the 1967 introduction of the Divorce Act.[266] All Ontario family litigation is subject to a corpus of key statutes,[267] common law principles, and procedural rules. [268] The Family Law Rules apply to all family disputes in all Ontario courts. However, Ontario has a geographically heterogeneous family law procedure, in which remain substantial differences between regions and courts. This section will briefly discuss some of the distinctive features of family litigation in Ontario, before identifying some of the costs and benefits of litigation as a response to family disputes.
There are three types of court in the system: (i) the Superior Court of Justice, (ii) the Ontario Court of Justice, and (iii) the Family Court branch of the Superior Court of Justice.[269] Courts in this third category are also known as “Unified Family Courts” (UFC).[270] In the 18 jurisdictions which have a UFC, all private family disputes can be addressed therein.[271] In other parts of the province, litigants attend either the Superior Court of Justice (SCJ) or the Ontario Court of Justice (OCJ). In general, parties who are seeking a divorce must go to the SCJ while all others file in the OCJ. In remote communities, family court may be part of a “court party” which travels between communities.[272] Unified family courts reduce the complexity of the system for litigants, while allowing resources such as mediation and specialist judges to be deployed more efficiently for a larger group of litigants. The province should work with the federal government to extend the UFC system across the province.
Another important difference between Ontario courts is the nature of the judges. In some locations family matters are heard by specialist judges, who either deal exclusively with family law disputes or who have family law among two or three areas of exclusive focus. In others, the judges are generalists who hear the whole gamut of legal disputes, including family law matters. In general, smaller communities are less likely to have specialist family law judges, because the quantity of family disputes in these areas is not sufficient to occupy a judge full-time. There is an active debate in the literature about whether the quality of adjudication is correlated to whether or not the judge is a family law specialist.[273] Many family lawyers prefer specialists,[274] but there does not appear to be quantifiable evidence about whether specialist judges produce tangibly different results for litigants. The “Recapturing and Renewing” report proposed what seems a reasonable compromise position between judicial generalism and judicial specialism in family court: generalist judges should be appointed to hear family cases for terms of at least six months.[275]
There are a number of other points of divergence among Ontario family courts. While some jurisdictions (including Toronto) appear to have enough judges to make a system work in an orderly fashion,[276] other jurisdictions (particularly those in the “905” area around Toronto) lack sufficient judicial resources to deal with the demand.[277] Judicial resources should be distributed so as to minimize regional disparities in access to family justice. Parenting information sessions are mandatory in some courts, voluntary in others, and entirely unavailable in many others.[278] There are also reportedly some divergences among the forms used at different courts.[279] Conferences under Rule 17 of the Family Law Rules are scheduled in different ways at different courts. For example, in Brampton a judge will have three conferences scheduled concurrently at 10 a.m., and shuttle between them.[280] In Toronto, one conference is scheduled every hour or every two hours.[281]
These are all examples of regional variations and experiments in family court administration. They are evidence that litigation is not “monolithic” or totally tradition-bound in the family arena. A simple form of cost-benefit analysis would involve comparing the costs and benefits of these alternatives which are currently in place, identifying best practices, and exploring potential to incorporate them elsewhere when appropriate. While there may in some cases be good reasons for regional variation, family court judges and administrators should be encouraged to identify best practices and spread them throughout the province where appropriate.
What are the costs and benefits of litigation as a way to resolve family conflict, by comparison to alternatives? While litigation is almost a dirty word among some family conflict, professionals, its benefits should not be ignored. Both in Ontario and abroad, the professionals who work in family courts have made substantial efforts to fine-tune civil procedure to respond to the unique characteristics of family cases.[282] Litigation, and facilitating access to the court, may have benefits in terms in terms of access to justice,[283] perception of justice,[284] and respect for the court.[285] Sometimes the adversarial system has produced breakthroughs. The 1992 Supreme Court of Canada judgment in Moge v. Moge is generally acknowledged to have constituted a major leap forward in Canadian spousal support law in terms of remedying support arrangements which were unjust to women.[286] Moge, and the substantial social benefits which it has produced, would have been impossible if the parties had been pushed into mandatory mediation or another form of ADR. Had they weighed the amount of money at stake in their case (less than $200 per month) against the cost of litigating through multiple appeals to the highest court in the land, then it is unlikely that our law would have moved forward as it did.[287]
Some scholars say that people feel more satisfied with adversarial modes of dispute resolution as compared to inquisitorial or mediatory ones.[288] Carol Smart and Vanessa May note that, at least in principle, “the courts can … function as a mechanism through which the parents can express their hurt and grievances, and in this way the legal process can offer psychological containment of disputes and conflict.”[289] However, family litigation appears to many of the litigants to be unfair. The OCLN telephone survey found that, among low- and middle-income Ontarians who had resolved a family dispute within the previous three years, 45.7% said the process was “unfair.”[290] This suggests that the status quo, despite its emphasis on due process, is not convincing Ontarians that justice is being done.
One genuine benefit of litigation as a dispute-resolution mechanism is its openness to public scrutiny. Trials are transcribed, decisions are reported, and appeals are available to the litigants. None of the forms of ADR described above possess all of these characteristics. To the extent that we are concerned about decisions being made on inappropriate grounds (e.g. gender bias), the openness of litigation may be preferable to the secrecy of ADR.
Despite these benefits, family litigation imposes very substantial costs on adults, children, and society. The most obvious costs of family litigation for adults are the time and money which it consumes. The average 2009 legal fee for a contested divorce in Ontario was $12,602.[291] A divorce may be “contested” even if it is settled fairly quickly, and divorces involving courtroom advocacy can cost much more. The average legal fee for all Ontario civil litigation cases culminating in two-day civil trials was $45,477.[292] While it is not clearly specified in this data source, it appears probable that these fees are per person. The average “per family” legal fee for a contested divorce would therefore be 2 x $12,602, or $25,204. Retaining other private sector professionals, such as mediators or assessors adds to the cost,[293] unless doing so reduces the need for lawyers.
How affordable are family lawyers’ fees for Ontarians? These fees might be paid for by borrowing, by drawing on savings, or from individual income. As noted above,[294] there is a long-term trend to higher levels of indebtedness and lower quantities of savings. Even if an Ontarian is able to borrow or use savings in order to pay, doing so will clearly have obvious long-term repercussions on his or her economic well-being. Savings spent in litigation cannot be used for retirement or education, and loans must eventually be repaid.
To what extent can the average Ontarian pay for family litigation using his or her income, without drawing down savings or borrowing? The most recent data on Ontarians’ incomes from Statistics Canada pertains to 2007. That data indicates that the median income for “Economic families, two persons or more” in Ontario was $67,500.[295] Projecting the 1998-2007 income growth trend forwards produces a projected median income of $68,845 for 2009.[296] The 2009 “per family” legal fee for a contested divorce ($25,204) is equal to 36.6% of this income. Given that the average Canadian household saved only $3,200 in 2009,[297] it is clear that there is little surplus available in the average household budget to pay sudden and dramatic expenses such as legal fees.
It is safe to conclude that the average legal fee for a contested divorce would constitute an enormous financial blow for the average family. Moreover, these costs come at a time when people are likely to be especially ill-equipped to pay them, given the other financial pressures which are likely to arise on relationship breakdown, such as the need to relocate. This is particularly true for a spouse who left or curtailed involvement in workforce during the relationship.[298]
Each family lawyer’s bill will likely be paid by a single individual, given that the family relationship has broken down. Comparing the average legal bills against the incomes of median “lone-parent families” and “unattached individuals” establishes the inaccessibility of family legal services to middle-class Ontarians even more dramatically. The average 2009 legal fee for a contested divorce in Ontario ($12,602) is equal to 58% and 40% of the projected median 2009 incomes for unattached individuals and lone-parent families, respectively.
Nor are the lawyers’ fees the only financial expense. The following finding is from the Ontario Civil Legal Needs project, which conducted focus groups with justice system workers:
In addition to actual legal costs, the focus group participants pointed out a number of associated costs of accessing services that their clientele were not generally aware of and therefore not prepared for. Among these costs were those related to transportation, obtaining documentation, trial costs outside of the lawyer’s services (such as expert witness fees), and childcare costs (as childcare would sometimes be needed to enable a client to attend hearings and trials).[299]
Family litigation also has a very substantial cost in time. In some jurisdictions, litigants must return to court many times before their matter is called, due to insufficient judicial resources. In 2007 the Toronto Star told the story of Siddika Sumar, who spent $256,963.13 in legal fees spent on her family law case between 2004 and 2007. On 11 occasions, she attended the Newmarket court with her lawyer, only to find that there was no judge available or that the matter had been adjourned.[300] Newmarket is known as a particularly overburdened family court, and this story is by no means representative of all Ontarians’ experience. The particular problems faced by family courts in the “905 belt” around Toronto may help explain the OCLN telephone survey finding that residents of the “Outer GTA” [Greater Toronto Area] were among those whose family relationship legal problems had persisted for the longest periods of time without resolution.[301]”
However, even in the smoothest-running family courts, substantial time is required to prepare and attend. For many, this means seeking time away from work, arranging day care, etc. It has been estimated that the majority of all Ontario family litigants are unrepresented by lawyers.[302] For these individuals the cost in money is reduced but the cost in personal time and stress must surely be increased. An hour which a citizen spends in, or preparing for, a family court appearance is an hour which cannot be spent contributing to Ontario’s society or economy. For example, in the access dispute Geremia v. Harb, the father was self-represented during the majority of the litigation.[303] At the end, he claimed $155,688.53 in costs, arriving at this figure by multiplying the hours he had spent on his case by a notional rate of $110 per hour. If accurate, this would suggest that he spent in excess of 1400 hours preparing for this case. Had he spent 1400 hours working as an electrician (his profession), the benefit to Ontario in income taxes alone would have been substantial. While this claim was probably extreme and was not allowed by the court, it provides some indication of the cost in time of family litigation.
The costs of litigation are paid directly by adults, but they are also paid indirectly by the children of these adults. Parenting requires time, money, and energy, and family litigation can easily consume these scarce resources to the extent that it impairs parenting.[304] Julie Lassonde conducted a round-table consultation with children who had experienced challenges related to parental separation, and found substantial awareness of the price of litigation and its impact on the family’s financial security.[305] Occasionally, children are involved directly in family litigation.[306] There is a debate about the impact of litigation-involvement on children, but at least in some cases it can be traumatic.[307] This is especially true if children are asked to choose or take sides as between their parents, and inexperienced judges or lawyers may do so.[308] Assessment by a mental health professional or social worker is a much more common form of child involvement in family litigation,[309] but some say that this too can be stressful for children.[310] Children also pay a cost of family litigation because litigation increases inter-parental hostility, [311] which has been clearly demonstrated in the literature to have negative effects on children.[312]
Family litigation also has substantial costs for society and the taxpayer. The most obvious and direct costs to society of family litigation are those involved in paying judges and other court personnel and in operating court rooms. Most judges of the Ontario Court of Justice were paid a salary of $245,422.45 plus taxable benefits of $3,659.35, for a total taxable remuneration of $249,081.80.[313] Remuneration of Superior Court of Justice judges is established by the federal Judges Act, which established a 2004 salary and a series of cost-of-living adjustments.[314] According to the Judicial Compensation and Benefits Commission (established under s. 26(1) of the Judges Act) the annual salary earned by these judges in 2009 was approximately $260,064.[315]
While some of these costs are inevitable, there is an argument to be made that counterproductive processes increase these direct costs to the taxpayer. The costs of dysfunctional family litigation borne by adults and children are also costs borne by society as a whole. Social and economic benefits may therefore result from reform efforts which reduce dysfunctional conflict. Preventative efforts to reduce family litigation are likely to save more money than they cost. Given its dramatic cost in money, time, and stress, litigation should be society’s last resort in responding to family conflict.
IV. B. Administrative and non-individualized responses to private support entitlements
This section will survey the present reality and potential future application of administrative solutions to family support obligations in Ontario. The adjective “administrative” is used here to refer to the resolution of disputes and enforcement of obligations by state agencies which are not courts, and by state employees who are not judges.[316] This Part will first review the law of child support with emphasis on the elements which may make it suitable for administrative solutions. It will then identify administrative responses to family disputes which have already been implemented in Ontario and elsewhere. The author will then argue that, at least with regard to guideline child support, administrative solutions could have substantial benefits in increased compliance and reduced process costs for parties and the state. The costs or drawbacks of such reforms would come in the form reduced potential for discretionary and customized judicial decision-making.
IV. B. 1. Guideline Child Support
The two primary support obligations in Canadian family law are child support and spousal support. Spousal support has been made more predictable by the creation of the Spousal Support Advisory Guidelines,[317] and could conceivably be subject to administrative solutions. However child support, and especially “guideline” child support, is the family law remedy which lends itself most obviously to administrative responses. “Guideline” child support is the amount payable according to section 3 of the Child Support Guidelines (CSG).[318] The CSG require only two inputs in most cases: (i) individual income of the payor, and (ii) the number of children for whom child support is to be paid. Using these inputs, the amount owing is provided by a series of tables which are part of the legislation.
Of course, Canadian child support law is more complex than simply the calculation of Guideline amounts. In some cases, support must be calculated in a more discretionary fashion – e.g. if custody is shared or if the payor’s income is in excess of $150,000 per year.[319] Even if the Guideline amount is payable, additional amounts may also be owed for “special expenses.[320]” Determining the payor’s income can in some cases be complex, especially if the payor is self-employed.[321] However in the substantial majority of cases, once payor income and number of children are known there is a readily calculated guideline amount which will be owing. There is, in these cases, relatively little need for sophisticated or individualized decision-making about the Guideline support obligation. It is for this reason that Ontario family court judges can and do make guideline child support orders at pre-trial conferences, in the absence of full argument and record.[322] It is also for this reason that guideline child support is an area of our family law in which moving away from a judicial model towards an administrative model should be considered.
IV. B. 2. Status quo in Ontario
In Ontario, the court system retains primary responsibility for determining support obligations. However, some movement towards an administrative model has already taken place. This is most obviously true with regard to support enforcement, but is also somewhat true with regard to determination and recalculation of support obligations.
The most prominent administrative element of family support procedure in Ontario is the Family Responsibility Office (FRO).[323] A part of the provincial government’s Ministry of Community and Social Services, FRO describes its work as “help[ing] people meet their child and spousal support responsibilities.”[324] These responsibilities include support obligations created by domestic contracts and paternity agreements which have been filed with a court,[325] in addition to support orders made by a judge.[326] FRO enforces support orders using powers assigned by the Family Responsibility and Support Arrears Enforcement Act.[327] For example, FRO has the power to suspend the driver’s license of a payor who is in default,[328] or seize his or her property.[329] However FRO states that in most cases, the amount owing is simply forwarded by the payor’s employer to FRO.[330] The agency then sends this money to the support recipient.
A secondary administrative support enforcement initiative of the Ontario government is www.goodparentspay.com.[331] Visitors to this website are invited to “help Ontario children and families by helping us find missing, irresponsible parents who have defaulted on the payments owed to their kids.” When accessed on June 21, 2010, this website contained 39 photographs and physical description of support debtors. The website asks members of the public to send information about these individuals and their whereabouts to the Family Responsibility Office. The Family Responsibility Office and Good Parents Pay are administrative approaches to support enforcement. The Family Law Act also allows provincial agencies granting social assistance to enforce child support entitlements of recipients,[332] which could arguably be considered another administrative approach to support enforcement.
Enforcement is only one element of the law of support. With regard to the initial determination and recalculation of child support, the Ontario court system has remained in the driver’s seat. However, this may be on the verge of changing. The following as-yet-unproclaimed provisions were added to Ontario’s Family Law Act in late 2009:
Recalculation of child support
39.1 (1) The amount payable for the support of a child under an order may be recalculated in accordance with this Act and the regulations made under this Act, by the child support service established by the regulations, in order to reflect updated income information.
Effect of recalculation
(2) Subject to any review or appeal process established by the regulations made under this Act, if the child support service recalculates an amount payable for the support of a child under an order, the recalculated amount is, 31 days after the date on which the parties to the order are notified of the recalculation in accordance with the regulations, deemed to be the amount payable under the order.[333]
These provisions appear to envision an administrative “child support service” which could be responsible for recalculating child support in light of payor income changes. However these remain unproclaimed as of June 21, 2010 and the regulations to which they refer have not been made public.
IV. B. 3. Status Quo in Other Provinces
All of Canada’s provinces have Maintenance Enforcement Programs (MEPs) analogous to Ontario’s FRO; these were created in the 1980s and 1990s.[334] The essential functions of MEPs are (i) registration of cases; (ii) processing of payments; (iii) monitoring, and (iv) enforcement.[335] Roughly one third of all Canadian family law cases in which child support is owed are enrolled with a MEP.[336] In the West and North of Canada, the MEP programs are run on “opt-in” basis: the recipient can choose whether to enrol. In the remainder of the country, they are generally “opt-out:” all support orders are enrolled and recipients and payors can only remove themselves under specified conditions.[337]
While enforcement is the element of support law in which administrative solutions are most widespread in Canada, recalculation is also the subject of several recent administrative initiatives. As noted above, any change in payor income is likely to constitute grounds for upward or downward revision. Because few people have incomes which are totally constant from year to year, many payors and recipients are legally entitled to seek a variation.
The Divorce Act permits the federal government to enter an agreement with a province “authorizing a provincial child support service designated in the agreement to … recalculate, at regular intervals, in accordance with the applicable guidelines, the amount of child support orders on the basis of updated income information.”[338] Several such provincial child support services have been established. According to a federal Department of Justice survey conducted in March of 2008, they exist in Prince Edward Island, Manitoba, British Columbia, and Newfoundland.[339] Another was subsequently launched in Alberta,[340] and such programs may exist in other provinces as well.
Newfoundland was the first Canadian province to initiate an administrative child support recalculation service under an agreement with Ottawa. This initiative began with the “Family Justice Services Western” pilot project, which was established in the communities of Corner Brook and Stephenville in 2002. It provided an expansive set of services to individuals with family problems, including mediation, education, and counselling.[341] However, perhaps the most dramatic innovation was the administrative child support recalculation service. An amendment to provincial legislation allowed provincial employees to recalculate child support obligations after changes in payor incomes, subject to only minimal judicial oversight.[342]
A report prepared for the federal Department of Justice in 2004 evaluated this pilot project.[343] This evaluation document sought to identify the costs, as well as the benefits, of introducing such services on a broader basis. However, section 2.8 of the report identified a divergence between the nominal budget of the pilot project ($489,460) and the “real cost,” due to the project’s reliance on in-kind contributions from the provincial government and due to an unsustainably low salary for one of the employees.[344] The document also identified some non-financial costs or drawbacks. For example, it identified (without quantifying) the danger of court-annexed mediation in situations of domestic violence or power imbalance.[345] However, the overall evaluation was positive.
Administrative schemes do not yet appear to exist which handle the initial determination of child support, as opposed to the subsequent recalculation or enforcement of a support obligation. Section 25.1 of the Divorce Act suggests that while provincial child support services may perform the entire function of recalculation based on income changes by themselves, with regard to the initial determination of child support entitlements they may only “assist courts.”[346] As of March of 2008, the Department of Justice had not identified any administrative “Support Establishment Services.” However, several provinces have special legal aid or mediation programs for initial establishment of support.[347]
In Québec, the state has a somewhat more active role in child support collection and enforcement. All child support payments are made to the Minister of Revenue unless an exemption has been granted.[348] If the support debtor is in arrears, the Minister may also in some cases provide advances of money to the support creditor. These advances are limited to a maximum dollar amount of $1,000 and may not continue for more than three months.[349] One impediment to implementing this system in Ontario is that this province, unlike Québec, does not have its own Ministry of Revenue. That task is performed on Ontario’s behalf by the Canada Revenue Agency (CRA), and section IV.B.7 will consider a possible role for the CRA in family support administration. Alternatively, FRO could perform a similar function, by providing a steady stream of child support benefits to recipients in the event of fluctuations in the amount collected. The amounts forwarded to recipients by FRO could subsequently be collected from payors with interest.
IV. B. 4. Benefits of Administrative Solutions
Increased Compliance and Durability. With regard to child and spousal support obligations, compliance is a substantial challenge,[350] and increased reliance on administrative techniques may be part of the solution. In 1979, the Law Reform Commission of Canada estimated that “some degree of default” occurs in “as many as 75 per cent of all orders” of this nature.[351] There is also some information about compliance available from provincial Maintenance Enforcement Programs such as FRO. In one sample of MEPs studied by Statistics Canada, only one third of the recipients enrolled received the full amount owing in every month of a given year.[352] Another Statistics Canada document reported that roughly 68% of cases enrolled in a MEP are in full compliance in any given month.[353] Ontario’s Provincial Auditor reported in 2005 that “payment arrears totalled approximately $1.3 billion,” and “approximately 23,000 support recipients, whose cases were in arrears totalling over $200 million in 2003, were receiving provincial social assistance.”[354]
However, many support agreements are not registered with a MEP, and it is difficult or impossible to determine the compliance rate among these. A substantial methodological problem is posed by the large number of cases which are never subject to any formal adjudication. If two parents separate and reach a “kitchen table” agreement about child support without involving the legal system, how is a researcher to know whether those child support obligations were fulfilled?
Paul Millar responded to this challenge with an innovative empirical technique in his 2009 book.[355] Millar used the Statistics Canada Survey of Labour and Income Dynamics data set in order to study support payments in Canada.[356] This survey asked respondents questions about how much they paid and/or received in child and spousal support every month, as part of a general questionnaire about income.[357] Child support is directly tied to the payor’s income in most cases, and while spousal support is more complex it is also correlated to payor income. One would therefore expect that support payments would change roughly as often as payor incomes do. However Millar found that income fluctuates much more often and more dramatically than support payments. Millar elaborates on his findings:
The fraction of household income, particularly for support payors, is much lower than would be expected awards dictated by the Canadian child support guidelines. The finding supports the contention that child support is drifting away – on average, lower – from the guidelines as time passes, accounting for the lower than expected amounts of child support as proportion of payors’ income.[358]
A key benefit of administrative initiatives in family support law is their potential to increase compliance. Indeed, this is the primary purpose of the maintenance enforcement programs schemes which represent the most substantial administrative initiatives in Canadian family law.[359] The deduction of support at source (e.g. by the employer of the support obligor) removes many of the opportunities for non-payment. The expansion of administrative initiatives, for example into the initial establishment and subsequent recalculation of support obligations, might further increase the number of parents who receive the amounts to which they are entitled by law. It could also bring relief for the payors who have suffered involuntary decreases in income and are therefore entitled to reductions in the obligation. For these among other reasons, Paul Millar suggests that an administrative agencies should perhaps play a stronger role in child support recalculation.[360]
Reduced Process Costs for the Parties. Using litigation to determine and enforce guideline child support involves substantial process costs for the parties.[361] Parents, especially single parents, are already under substantial time and financial stress. Having to go to court may therefore be especially burdensome for them. Administrative initiatives have the potential to reduce the process costs on parents who receive or pay child support. Shelley Kierstead describes administration recalculation schemes as the “ideal manner by which to foster greater certainty and relieve recipient parents of the potentially daunting burden of initiating negotiations for revised support obligations with a former partner.”[362] The benefits which Kierstead identifies would also be enjoyed by payors who experience involuntary drops in income.[363]
IV. B. 5. Costs and Drawbacks of Administrative Solutions
Lack of individualized legal advice and help. The first significant drawback is that administrative regimes are not likely to offer parties the individualized advice and support which a capable lawyer can provide. This reality is illustrated by the Family Responsibility Office’s treatment of “Mr. F,” which was the subject of a 2006 report from the Ombudsman of Ontario, André Marin.[364] FRO had issued a Writ of Seizure and Sale against a home belonging to F’s former spouse. However, the Writ was issued in the debtor’s former name, instead of her new married name. Because the home was registered under the debtor’s new name, the Writ was ineffectual. The Ombudsman chastised FRO for not informing Mr. F of the potential need to vary the support order so as to reflect the debtor’s new name.[365] The Director of FRO replied that this office,
as a neutral maintenance enforcement program enforcing support orders in Ontario, is unable to provide legal advice to either a support payor or a support recipient.[366]
While the Ombudsman found this explanation unconvincing,[367] there are good reasons why administrative agencies must be cautious about giving legal advice to individuals. To do so can expose them to liability insofar as they lack the resources and statutory mandate to competently offer legal advice. The reality is that parties are unlikely to receive compassionate and individualized service from an administrative agency such as FRO or the Canada Revenue Agency. This is not necessary the consequence of incompetence or wrong-doing on the part of the agency; it is simply a reflection of the nature of government agencies. Personalized and emotionally responsive service is more likely to come from a lawyer or paralegal who is directly retained by the client.
The Disempowering Effects of Bureaucracy. Second, working with an administrative agency may also be more disempowering than working with an individual legal service provider. Lawyers are, at least in principle, responsible to and directed by their clients. By contrast, Marin characterized the relationship between Mr. F and the FRO as “one of power and dependency,” with the agency in the driver’s seat. Marin noted that s. 6(7) of the Family Responsibility and Support Arrears Enforcement Act (the statute which empowers FRO) prevents the parties themselves from initiating enforcement actions once the order has been filed with FRO. He therefore concluded that FRO “has the legal duty to enforce support arrangements, the discretion to use a range of tools to do so, and imposing powers. Meanwhile, the ‘support recipients’ … have their enforcement rights and interests left entirely in the hands of that Office.”[368]
Inefficiency and Ineffectiveness of Administrative Agencies. Third, it should not be assumed that an administrative agency will discharge its assigned functions in an efficient and effective manner, even when those functions appear to be straightforward and the agency’s powers appear to be plenary. As the status quo compliance figures indicate, the provinces’ Maintenance Enforcement Programs described above are by no means completely successful in securing support payment.[369] The Provincial Auditor of Ontario sharply criticized FRO in 2003 for its lack of effectiveness:
We concluded that the Family Responsibility Office did not have satisfactory systems and procedures in place for initiating contact and taking appropriate and timely enforcement action where payers were in arrears on their family-support obligations. In fact, it is our view that, unless the Office takes aggressive enforcement action, supported by effective case management and significantly improved information technology and communications systems, it is in grave danger of failing to meet its mandated responsibilities. We found that the Office’s services were impaired…[370]
A 2005 follow-up by the same office found that “some progress has been made in implementing the recommendations, but “further progress on several recommendations depends on the successful implementation of a new case management system.”[371] While there are tens of thousands of Ontarians in arrears on child support, Good Parents Pay has only 39 profiles publicly available. Clearly, whatever impact this administrative initiative has can only be a “drop in the bucket.”
Other potential costs or drawbacks of administrative initiatives should also be recognized. Removing an area of the law from the domain of the courts may diminish the ability of the common law to develop along with society.[372] Especially in the absence of effective judicial review, administrative agencies may abrogate the rights of citizens in an irresponsible or authoritarian fashion.
Finally, family courts can offer “one-stop-shopping” to Ontarians. Property division and parenting disputes may be resolved along with support issues in a single process. If those family disputes which are most amenable to administrative decision-making (i.e., guideline child support) were to be handled by a separate agency, Ontarians might have to engage in two or more separate processes to resolve their family challenges. This duplication of processes would entail substantial additional process costs. As Ontario explores the potential of administrative responses to family challenges, it should seek to maximize their benefits (increased compliance and potentially reduced process costs), while reducing their costs (such as citizen disempowerment, bureaucratic inefficiency).
IV. B. 6. The potential role of the Canada Revenue Agency
Among the numerous ways in which administrative decision-making in family law could be expanded, one of the more dramatic and comprehensive would be involving the Canada Revenue Agency (CRA) in child support determination, recalculation, collection and payment. In Quebec, the Minister of Revenue is actively involved in child support collection and payment, and this model could be expanded across the country.
There are several potential advantages to this idea. As noted above, determining the income of self-employed individuals is one of the thorniest challenges in child support law. The CRA is already in the business of precisely determining individual income, in order to assess income tax owing. There might be significant efficiencies in allocating the task of income-determination for child support purposes to the CRA as well. With regard to enforcement, the CRA also has the legal powers and the expertise to collect income tax which is in arrears. These powers might equally be used to collect child support. Finally, the CRA already has some involvement in family disputes, e.g. under the Family Orders and Agreements Enforcement Assistance Act.[373]
However, giving responsibility for child support to the CRA would certainly involve that agency in matters with which it has no experience or institutional expertise. For example, the determination of biological parentage involves genetic testing of individuals and the application of legal presumptions. There are also discretionary elements of child support which call for individualized decision-making.[374] Finally, there are constitutional and political impediments to having the CRA involved in child support, which might or might not be overcome.[375] The province should explore and discuss with the federal government the potential of involving the CRA in family support administration.
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