The Law Commission of Ontario (LCO) initiated, in 2008, a major project in family law titled Best Practices at Family Justice System Entry Points: Needs of Users and Responses of Workers in the Justice System. This research paper is designed to make a contribution to that project. The LCO through this project seeks to improve the process of addressing family law disputes in Ontario by identifying and recommending best practices at entry points to the family law system. The focus, in other words, is on the beginning stages of the family justice process. The principal objective is to develop a means to address family justice issues proactively before they have escalated into full blown legal disputes demanding address through resource-intensive formal legal channels.
What are at issue in the beginning stages of the family justice process are family challenges and family problems. Family challenges are issues with legal dimensions that individuals or families need to overcome in order to achieve some sort of desired constructive outcome. Some concrete examples of family challenges have been provided by the Law Commission of Ontario in its September 2009 consultation paper:
Family challenges include planning an intimate relationship according to Ontario law; learning about Ontario family property law prior to marriage and discussing possible arrangements without hurting the relationship; or planning a relationship when spouses do not live in the same country, for example.
Family problems, on the other hand, are issues with legal dimensions that arise when families become disfunctional. The Law Commission has also provided concrete examples of family problems.
Family problems include separating from an intimate partner; managing caregiving responsibilities towards children post-separation; having a child removed from one’s care; facing violence from a family member; and trying to break financial and emotional dependency patterns from a spouse.
Where people turn for help in Ontario when they initially face family challenges and family problems is what is meant by the entry points or access points into the family justice process. The LCO project is ultimately designed to improve those entry points in Ontario by learning from promising practices in Ontario and elsewhere.
In its consultation process, the Law Commission of Ontario has identified four inter-related commitments or principles for improving access to justice for persons in Ontario facing family challenges or family problems. The first commitment is to a focus on access at the early stages of a person’s engagement with the family justice processes that address these challenges or problems. Underlying this commitment is the belief that greater attention to the early stages of engagement is an effective way to reduce the likelihood of challenges or problems escalating in their seriousness. The second commitment is to the idea that reforms should utilize a holistic multidisciplinary approach to the family justice system where the seamless delivery of services involves a continuum of provision ranging from traditional legal services to crime prevention to marital counselling to parenting advice. Underlying this commitment in part is the view that more traditional disciplinary service delivery misrepresents the fluidity of family challenges and problems for many people in Ontario. The third commitment is to multiple points of entry for persons turning to the family justice system with family challenges or family problems. Multiple points of entry are an acknowledgement of the diversity of the persons in Ontario who utilize the family justice system. The fourth commitment is to family justice reforms that benefit persons across the entire province, reaching both those in large urban centres and those living in rural or more isolated communities.
Objectives of the Present Research Paper
The present research paper focuses on the vision of a family justice process in Ontario that provides for a multidisciplinary seamless delivery of family services when people turn to it for help with family challenges or family problems. It has two main objectives.
The first objective is to situate the vision of a multidisciplinary family justice services approach within the broader context of the policy trend in Ontario towards multidisciplinary family services in general. Ontario has in some areas of social services delivery – community health centres, family counselling services, early childhood education centres – embraced an approach that allows for multidisciplinary teams of professionals to provide services holistically on co-located sites. From this perspective, the Law Commission of Ontario’s family justice project is just a logical extension of this sort of approach. It is shown that the idea of a multidisciplinary family justice model fits especially well with the emphasis on community primary health care delivery and the early learning policy initiatives developed over the past decade by the Government of Ontario.
The second objective is to identify some of the tensions and challenges that exist in the vision of different professionals – lawyers, police officers, family mediators and dispute resolution specialists, psychologists, nurses, physicians, early childhood educators, social workers, teachers, social service workers – working collaboratively together to deliver services to persons in Ontario needing help with family challenges or family problems and illustrate how promising practices can provide guidance for easing those tensions.
Families and the Fluidity of Their Needs
It is important to explain from the outset more precisely what is meant by the term “family” in this research project. For our purposes, family is an inclusive term meant to apply to a range of what are sometimes called familial relationships: intimate relationships between partners; relationships between parents or guardians and young children; relationships between children and the partners of their parents; relationships between siblings; relationships between adults and their elderly parents; relationships between grandparents and grandchildren; and relationships between children and extended family members. The point is to avoid stereotyping who uses family oriented services and essentializing the needs of families. Given the diversity of familial relationships, there is a corresponding diversity in their needs and the services required to meet those needs.
It is also very important to emphasize not only the diversity of those needs but also the fluidity of those needs. Sometimes, among professionals, there is an inclination to classify and categorize the needs of families in ways that correspond to the professionalization of service providers. Some needs might be classified as educational, others health, others still income security or housing, yet others legal. And even among legal professionals, there is a tendency to further classify the legal needs into categories such as immigration, family, employment, civil, and criminal. Whilst these classification schemes may make sense for providers, they rarely map on to how families themselves perceive or experience their needs. Family difficulties tend to be fraught with emotion because they touch on who we are and how we understand our personal identity. The vision of multidisciplinary paths to family justice sketched out below involves making linkages between legal and non-legal services in a manner that reflects how families perceive or experience their needs.
The Nature of Family Justice Services
This study is focused on facilitating early and multiple access points to family justice services. There is a continuum of legal services that individuals and their families may access. At the lower end of the continuum are what can be described as low-level legal services, at the other end, intensive legal services. The stages of this continuum of legal services can be broken down in the following way:
· Legal information: basic information about the law on a given topic provided by a lawyer or some other knowledgeable professional.
· Legal Consultation: expert opinion on broadly defined topics as on specific cases and situations provided by a lawyer.
· Informal Dispute Resolution: community mediation and other flexible informal forms of dispute resolution provided by a community leader, mediator or dispute resolution specialist.
· Legal Representation: retention of a lawyer or paralegal to provide representation in the legal process.
· Alternative Dispute Resolution: mediation, negotiation, arbitration and other forms of dispute resolution operating in the shadow of the law.
· The Courts: the formal court system in Ontario.
The first three constitute low-level legal services. Since the emphasis in this study is on early entry points into the family justice system, the legal services at issue are primarily low-level ones, that is to say, ones involving legal information, legal consultation, and informal community mediation and some other forms of dispute resolution.
The Vision of Multidisciplinary Paths to Family Justice
Before explaining the methodology and chapter breakdowns for this paper, it is helpful to have a clearer sense of the vision for the family justice delivery model that underpins the discussion to follow. This is a vision of what we call multidisciplinary paths to family justice. Charles Pascal in his influential 2009 report to the Premier of Ontario, With Our Best Futures in Mind: Implementing Early Learning in Ontario, writes:
Imagine…The mother of a 4-year old girl and a new baby boy is welcomed at the school door by the principal, who asks how she and her family are doing…The mother is on parental leave while the father works. He plans to go on leave when she returns to her job. The older child runs off to the Early Learning Program while her mother has her own morning planned at the Best Start Child and Family Centre, where she has a postnatal consultation with a public health nurse. Last year, when her older child attended the centre, educators identified a difficulty with the child’s communication skills. With some extra help the little girl is now doing well in the Early Learning Program…She had no trouble adjusting. The Early Learning Program is just down the hall from the centre and she already knew the staff. Hours after the last bell has rung the school is still buzzing. Parents come and go, picking up children who have participated in extended programming…and a concurrent parenting program is running.
Now, imagine layering on to this vision the provision of family legal services when family challenges or problems arise.
Suppose that when the mother is about to return to work, she discovers that her employer is proposing to change her position from full-time to part-time. Or that her husband’s application for landed immigrant status has been denied. Or that their landlord has threatened to evict them if they do not begin paying hundreds of dollars more rent immediately. Or facing marital diffic