The Law Commission of Ontario has focused its assessment of and recommendations with respect to the family law system in Ontario on the need to increase inclusivity in the justice system to acknowledge and respond to Ontario’s pluralist character and to address the continuing problems of affordability and multifaceted problems that face families in crisis.

We assess the current system against benchmarks, make suggestions about changes to further satisfy the benchmarks and recommend the development of multidisciplinary, multifunction centres or comprehensive services at the early stages when people in family disputes seek assistance about whether they have a legal problem and if so, how they might most effectively proceed.

Over the past few years, there has been considerable study and reform of the family law system. Yet problems of complexity and difficulties for unrepresented litigants in particular remain. We recognize the considerable work that has already been done by the government, the courts, academics and community organizations, build on it and advance it by bringing the nuance of diversity and the emphasis on comprehensive services to the forefront of formal legal services.

We have prepared the Report in two Parts, with a common Introduction and a review of Part One at the beginning of Part Two. In Part One, we provide background, including assessing the strengths and weakness of the current system through an “access to justice” lens, paying particular attention to whether and how the system addresses the challenge of diversity, facilitates early and effective access to information, is responding to the increasing cost of legal services and the interrelationship between legal problems and other problems experienced by individuals facing family breakdown. In Part Two, we suggest ways to improve existing entry points to help facilitate access to family justice services. The changes we discuss in Part Two are necessary for and support the creation of the comprehensive delivery of services which we recommend at the end of Part Two.

Our approach is designed to increase access to justice through the provision of sufficient information and assistance to enable family members involved in family disputes to make a decision about whether they want to enter the family legal system and if so, how to take subsequent steps. It is premised on an understanding that the legal system is affected by and in turn affects other aspects of society, such as the increasing pluralism of Ontario society and the interdisciplinary nature of family disputes.

In Chapter II of Part One, we provide an overview of the current family justice system, including the reforms undertaken since 2010. We discuss legal information and self-help tools, legal advice and representation, dispute resolution, counselling and other supportive services and briefly, services for children. We assess the current system against benchmarks.

Although there is a great deal of information available, in print and on the internet, it quickly becomes complicated and difficult to navigate. There are many different sources, each emphasizing its own mandate. While the internet may make it easier for many people to access information, for others, it is difficult because they do not have ready access to computers or possess computer literacy and in some cases because they live in remote areas lacking high speed internet. People with low levels of literacy or whose first language is neither English nor French are likely to find written information particularly inaccessible and even if they can read it, may find it almost impossible to apply to their own circumstances.

Although online information may be helpful for many people, others will require in-person assistance to understand it. However, much of the information provided in-person by the formal system is linked to the courts. Yet not all persons with family concerns will want to begin at the courts – or even end there.

We summarize the difficulties faced by unrepresented litigants and their impact on the system. The lack of affordability of legal representation remains a serious problem, one not fully compensated for by the recent reforms. We discuss developments such as limited scope retainers and the contribution law students make to the system. We briefly review the reforms to the court system that seek to make it more accessible to litigants and more effective. These efforts are designed to resolve low conflict and relatively uncomplicated cases more quickly, freeing up resources for high conflict and more complex cases. We also review a range of “counselling” services available to people facing family crises.

In assessing the current system against our benchmarks, we note the plethora of information and the difficulty for people with certain characteristics in accessing it, understanding it or applying it to their own circumstances. People have similar difficulties with “self-help” tools. We are also concerned with how much of the in-person information provided by the legal system assumes that people will be looking to the court to resolve their problems. Furthermore, the current system does not adequately address the multiple problems facing people that led to or exacerbate their legal problems or that make the legal problems even more difficult to resolve in the long term. Finally, while we are aware that various actors in the system have in many ways responded to the diversity of Ontario’s population, we believe more can be done in this regard.

Chapter III of Part One surveys the richness of Ontario’s pluralist character, the changes in the status of women and evolving relationships between men and women, the challenges facing persons with certain disabilities, the extent of low literacy skills, the reality of living in remote locations, legal changes such as recognition of same-sex marriage and the composition of Ontario families — and the implications of all these factors for people’s interaction with the family legal system. We explain why we believe the family law system should identify advancing substantive equality as an overriding value through the way it addresses and incorporates these factors and circumstances.

In Part Two, we make suggestions for changes to the system that should help fill in remaining gaps. These changes also set the stage for the comprehensive entry points we recommend. As far as online information is concerned, we suggest the need to create a “hub” that brings the information into a more comprehensive format. We also believe that the most basic information needs to be made available where people will see it when they are thinking about their family problems – when they are shopping or waiting for a doctor’s appointment, for example. We believe that “trusted intermediaries”, at community centres, or similar places, can be particularly helpful in explaining the information to people with related ethnic backgrounds, persons with certain disabilities, those with low levels of literacy and others for whom the legal system and its language (even when apparently simplified) seem too formidable, as well as helping them with the self-help tools. We stress that trusted intermediaries must have appropriate training and access to resources to help them fulfil these responsibilities.

Even at early stages of the process, people will need access to legal advice. The reality is that full legal representation will not be available for everyone. Although we are cautious about unbundled services, especially in family cases, we acknowledge that they are an accepted part of service delivery. We emphasise, therefore, that lawyers delivering services through limited retainers appreciate the pitfalls. We refer to approaches that have been taken elsewhere to provide legal services in more affordable ways, without necessarily endorsing them. We also discuss how students’ contributions could be extended, as long as they are properly trained and appropriate limitations are placed on what they are permitted to do. Extending paralegals’ scope of practice to include family law is controversial; however, we conclude that this possibility should not simply be dismissed, but rather considered carefully, noting that concerns David Morris, who reviewed the five years of regulated paralegal practice in Ontario, expressed about training and standards of professional conduct be adequately addressed. Throughout, it is important that the needs of those whose lack of familiarity with the system and whose circumstances make the system particularly confusing and difficult to navigate be identified and addressed in how information is delivered and in the availability of appropriate intermediaries, for example. Finally, increasing access to expertise to help the multiple problems that often accompany family legal problems will contribute to the resolution of the legal aspects of their disputes.

These and similar changes we consider in Part Two would help meet the benchmarks by providing initial information when people need it, simplifying access to information, providing assistance to make the system intelligible to newcomers and people whose circumstances prevent adequate interaction with the resources available. With this assistance, people may more readily determine if they want the help of the legal system or if it is, the approach most likely to resolve it. Properly trained, students and possibly paralegals will be able to provide certain kinds of services that help people interact with the system. However, implemented as discrete programs, these changes would not provide the seamless process that we have included among the benchmarks for an effective and responsive family law system.

The remainder of the Report explains why we believe the development of comprehensive (multidisciplinary, multifunction) services is