[1] Chief Justice Warren K. Winkler, Presentation to County of Carleton Law Association – Civil Litigation CLE Program (November 19, 2010), online: http://www.ontariocourts.ca/coa/en/ps/speeches/ccll_civil_litigation_cle_program.htm. Chief Justice Winkler returned to this view in “Family Law and Access to Justice: A time for Change”, Remarks by Chief Justice Warren K. Winkler, 5th Annual Family Law Summit, The Law Society of Upper Canada (June 17, 2011), online: http://www.ontariocourts.ca/coa/en/ps/speeches/2011-Family-Law-Access-Justice.htm. He acknowledged then that the Attorney General was instituting some “important changes in services”, but that he “remain[ed] committed to the notion that more fundamental change is needed”.
[2] Ontario Civil Legal Needs Project, Listening to Ontarian:, Report of the Civil Legal Needs Project (The Ontario Civil Legal Needs Project Steering Committee, May, 2010), 57 (Listening to Ontarians), online: http://www.lsuc.on.ca/media/may3110_oclnreport_final.pdf.

[3] Law Commission of Ontario (LCO), Voices from a Broken Family Justice System: Sharing Consultation Results, online: http://www.lco-cdo.org/family-law/family-law-process-consultation-results.pdf.

[4] Alfred A. Mamo, Peter G. Jaffe, Debbie G. Chiodo, Recapturing and Renewing the Vision of the Family Court (2007), online:  http://www.learningtoendabuse.ca/sites/default/files/Family%20Court%20Study%202007.pdf [the Mamo Report].

[5] OBA Family Law Section, ADR Institute of Ontario & OAFM, Home Court Advantage: Creating a Family Law Process that Works – Final Report (September 2010), online: http://www.adrontario.ca/media/Family%20Law%20Process%20Reform%20Report_final_web.pdf.

[6] Ontario Superior Court of Justice, Family Strategic Plan, online: http://www.ontariocourts.on.ca/scj/en/famct/familylawstrategicplan.htm. The Court’s Strategic Plan includes an emphasis on the needs of children: Prioritizing of Children Initiative – Statement of Objectives (December 2012), online: http://www.ontariocourts.ca/scj/en/famct/prioritizing-children.pdf.

[7]Ontario Court of Justice, Biennual Report 2006-2007, 54, online: http://www.ontariocourts.ca/ocj/files/annualreport/ocj/2006-2007-EN.pdf.

[8] The University of Toronto Faculty of Law, The Middle Income Access to Justice Initiative, online: http://www.law.utoronto.ca/about/giving-back-our-communities/access-justice-initiative.

[9] We note that many areas of law require the use of “experts” to assist in legal determinations. For example, the evaluation of property under the Family Law Act, R.S.O. 1990, c. F.3 requires the use of evaluators and accountants to address the division of pensions or jewellers to help determine the value of jewellry; and s.30(1) the Children’s Law Reform Act, R.S.O. 1990, c. C.12, allows a judge to appoint “a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child.” Our reference to the use of experts other than legal experts is slightly different, however: we mean the need of experts in other disciplines to consider the non-legal problems faced by family disputants as a way of understanding the part those problems play in relation to the legal dispute and how addressing those problems can either reduce the legal dispute or focus the legal dispute or help prevent the parties returning to court again and again.

[10] Professor Julie Macfarlane has been completing a study in which she and her team interviewed 250 unrepresented litigants in three provinces, including Ontario, and 100 “upfront” workers, such as those at the court counter and duty counsel (Conversation with the LCO, November 27, 2012). The study was at the pre-analysis stage; however, Macfarlane says that the “pattern is very clear”. Also see Don Butler, “Self-represented litigants ‘treated with contempt’ by many judges, study finds” Ottawa Citizen (January 1, 2013), online: http://www.ottawacitizen.com/mobile/story.html?id=7762754. This article also refers to the Macfarlane study and her findings.

[11] Anne-Marie Ambert, Divorce: Facts, Causes and Consequences (3rd ed) (Vanier Institute of the Family, November 2009), online: http://www.vanierinstitute.ca/include/get.php?nodeid=190. In 2008, about 42% of marriages in Ontario were projected to end in divorce before the couples’ thirtieth wedding anniversary: Human Resources and Skills Development Canada, Indicators of Well-being in Canada: Family Life – Divorce, online: http://www4.hrsdc.gc.ca/.3ndic.1t.4r@-eng.jsp?iid=76. Our report does not address divorce proceedings or differentiate between separation and divorce, since its focus is on the early stages at which family law disputants seek assistance. Also see Noel Semple, Cost-Benefit Analysis of Family Service Delivery: Disease, Prevention, and Treatment (June 2010) (Commissioned by the LCO) 3, online: http://www.lco-cdo.org/family-law-process-call-for-papers-semple.pdf.

[12] Some 80 per cent of divorces are uncontested: Mary Bess Kelly, “Divorce cases in civil court, 2010/2011” Juristat (Statistic Canada, March 12, 2012) 5, online: http://www.statcan.gc.ca/pub/85-002-x/2012001/article/11634-eng.pdf. Kelly points out that divorce rates have declined approximately 2 per cent per year over the period 2006/2007 and 2010/2011: 9.

[13] Ab Currie, The Legal Problems of Everyday Life: The Nature, Extent and Consequences of Justiciable Problems

Experienced by Canadians (Government of Canada, 2009) 34, online: http://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/rr07_la1-rr07_aj1/rr07_la1.pdf. Over 81 per cent said that it was “extremely important” to resolve their family breakdown problems.

[14] LCO, Voices from a Broken Family Justice System, note 3, 31. As we explained in the results of the consultations, the children had been “brought together by a counselling service with which they had been involved. The children and their parents signed written consents to participate in this consultation. The head of this counselling service, who has significant experience providing services to youth and their parents, co-facilitated the meeting.” A review of the family law system in the U.K. reported similar findings: UK Ministry of Justice, Family Justice Review Interim Report (March 2011) 151-52, online: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/162316/family-justice-review-interim-rep.pdf.pdf. The Final Report was released in November 2011, online: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/162302/family-justice-review-final-report.pdf.pdf. The U.K. study addressed state child proceedings, as well as their role in private proceedings, and was concerned with all stages of the process.

[15] Ambert points out that research results on the consequences of a divorce are not always consistent and that studies do not cover sufficiently extended periods of time. Ambert, note 11, 24.

[16] UK Ministry of Justice, Family Justice Review Interim Report, note 14, 151.

[17] Molly Dragiewicz and Albert DeKeseredy, Experiences of Abused Women in the Family Courts in Eight Regions in Ontario (Luke’s Place Support and Resource Centre for Women and Children, 2008) 50, online: http://www.lukesplace.ca/pdf/Study-on-the-Experiences-of-Abused-Women.pdf.

[18] Semple, note 11, 17.

[19] Semple, note 11, 18-19.

[20] Semple, note 11, 34-35.

[21] Dragiewicz and Dekeseredy, note 17.

[22] Currie, note 13, 19.

[23] Currie, note 13, 16 and 19.

[24] Currie, note 13, 46.

[25] Michael Trebilcock, Report of the Legal Aid Review (Ministry of the Attorney General, 2008) vi, online: http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/trebilcock/legal_aid_report_2008_EN.pdf.

[26] The Vanier Institute reports that of all working people in Canada, female lone-parents between 25 and 44 years of age work on average the longest hours.This amounts to nearly 11 hours of paid and unpaid work per day over a 7-day week: Roger Sauvé, Family Life and Work Life: An Uneasy Balance (Vanier Institute of the Family, 2009) 16. A 2011 report of Statistics Canada states that among family types, lone-parent families with children (the vast majority headed by mothers) had the highest debt to income ratio. This was 227 per cent compared to 170 per cent for couple families with children: Matt Hurst, Debt and Family Type in Canada (Statistics Canada, April 2011) 44, online: http://www.statcan.gc.ca/pub/11-008-x/2011001/article/11430-eng.pdf.

[27] According to Statistics Canada, “23% [of spousal homicides] were against separated spouses and 2% were against divorced spouses.” Statistics Canada, Family Violence in Canada: A Statistical Profile 2011 (Ministry of Industry, 2011) 33, online: http://www.statcan.gc.ca/pub/85-224-x/2010000/part-partie4-eng.htm. Although there has been a decline in spousal homicides (44% lower than 30 years ago), “the rate of spousal homicides

against females has consistently been about three to four times higher than that for males” and “female victims of spousal homicide were more likely than male victims to be killed by a partner from whom they were separated (26% versus 11%)”. The same pattern has been observed with regard to non-lethal separation assault: Dragiewicz and DeKeseredy, note 17, 12-13. In its 2011 Report, the Domestic Violence Death Review Committee noted that in cases reviewed between 2003 and 2011, “74% of all cases…involved a couple where there was a history of domestic violence” and “72% of the cases involved a couple with an actual or pending separation”: Domestic Violence Death Review Committee: 2011 Annual Report (Office of the Chief Coroner of Ontario, September 2012) iii, online: http://www.mcscs.jus.gov.on.ca/stellent/groups/public/@mcscs/@www/@com/documents/webasset/ec160943.pdf.

[28] Macfarlane, note 10. Also see Rachel Birnbaum and Nicholas Bala, “Experiences of Ontario Family Litigants with Self-Representation” (NJI, February 2012), online: http://www.google.ca/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CDIQFjAA&url=http%3A%2F%2Fwww.probonostudents.ca%2Fwp-content%2Fuploads%2F2011%2F08%2FJan-13-Birnbaum-Bala-Family-Litigants-Access-to-Justice-NJI-Feb-20121.pdf&ei=buRvUab4F-Pl4APIh4Ao&usg=AFQjCNFbKC-5mPjYzUwvY0pmX2N6SemrBw&bvm=bv.45368065,d.dmg.
[29] Macfarlane, note 10.

[30] Michael McKiernan, “Self-represented opponents: Case highlights difficulties of facing litigants without lawyers”, Law Times (June 18, 2012) 11. This article also refers to the difficulties judges face when parties are unrepresented. On this, also see Rachel Birnbaum, Nicholas Bala, and Lorne Bertrand, “The Rise of Self-Representation in Canada’s Family Courts: the Complex Picture Revealed in Surveys of Judges, Lawyers and Litigants” (2012) (CBR in press).

[31] Law Commission of Ontario, Research Priorities Report (April 2007) (Sossin Report), online: http://www.lco-cdo.org/SossinResearchReport.pdf. The LCO Board of Governors had asked Professor Lorne Sossin of the University of Toronto Faculty of Law (now Dean of Osgoode Hall Law School) to recommend potential projects for the new Law Commission of Ontario.

[32] Law Commission of Ontario, Division of Pensions upon Marital Breakdown Final Report (January 2009), online: http://www.lco-cdo.org/en/pensions-final-report.

[33] Law Commission of Ontario, “LCO sees recommendations enacted”, onlinehttp://www.lco-cdo.org/content/lco-sees-recommendations-enacted. See Ontario, Legislative Assembly, Official Report of Debates (Hansard), 39th Parl., 1st Sess, No 111, 19 February 2009, 0920 (Hon Christopher Bentley), online: http://www.ontla.on.ca/web/house-proceedings/house_detail.do?Date=2009-02-19&Parl=39&Sess=1&locale=en.

[34] Law Commission of Ontario, Family Law [Project] Options Consultation Paper (January 2009), online: http://www.lco-cdo.org/en/family-law-options-consultation-paper.

[35] Law Commission of Ontario, Best Practices at Family Justice Entry Points: Needs of Users and Responses of Workers in the Justice System (September 2009), online: http://www.lco-cdo.org/en/family-law-process-consultation-paper.

[36] LCO, Voices from a Broken Family Justice System, note 3.

[37] Professor Brenda Jacobs and Professor Lesley Jacobs, Multidisciplinary Paths to Family Justice, Professional Challenges and Promise Practices (June 2010), online: http://www.lco-cdo.org/en/family-law-process-call-for-papers and Semple, note 11.

[38] See Ontario Work’s Directive: “As a condition of eligibility applicants and recipients are with certain exceptions, required to make reasonable efforts to pursue child or spousal support to which he or she, or a dependent [sic], may be entitled.” Ministry of Community and Social Services, Ontario Works Directives, 5.5 Family Support, online: http://www.mcss.gov.on.ca/documents/en/mcss/social/directives/ow/0505.pdf.

[39] See Ontario Disability Support Program’s policy about support and similar payments: “An ODSP applicant/recipient must make reasonable efforts to obtain compensation or realize any financial resource to which he/she or his/her dependant may be entitled. The Director must b