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 the most effective way to provide access to the family legal system. We propose that these services be implemented according to the principle of “progressive realization”: that government define its end goals, that it implement what is feasible and identifies the gap between the goals and what has been implemented; the objective is to move forward in a progressive manner towards the goals until they are achieved. Realistically, there must be adaptation to changing circumstances; however, having a vision of what is to be achieved helps us to understand what must still be done.
It is crucial that family problems be viewed in a holistic manner, both to help identify whether the problems really need resolution in the family legal system or whether the resolution of other matters (financial or mental health issues, for example) will either mean that a couple finds that they do not need to break up, after all, or if they still want to dissolve their relationship, it is easier to address the legal aspects. These services will also allow a more satisfying response to issues related to ethnicity, gender, Aboriginality, low literacy skills and other characteristics that we have discussed throughout the Report.
We treat the development of interprofessional services in the health care sector to be a helpful analogy, albeit an imperfect one. We also find existing models of multidisciplinary, multifunction delivery of services to provide an excellent foundation for our own recommendations. The health care initiative differs from our approach because it primarily, although not exclusively, is limited to health care providers (and does not necessarily include doctors) and we advocate the inclusion of non-legal experts. The other existing models differ from our vision because although they involve multidisciplinary expertise, they tend to be limited to particular groups (such as particular ethnic or cultural communities, women who have experienced domestic violence or people living in rural communities); in contrast, we recommend services that are not dedicated to identified group or community, but rather integrate the kinds of assistance that people who find dealing with the system difficult for whatever reason –cultural identity, disability, living in remote areas, low literacy skills, among others. We emphasize that we do not believe (for instance) that everyone can be identified by their membership in a particular ethnic group; nor do we think that all members of a particular group will share the same viewpoint or needs. The same is true of other characteristics. Yet these are “markers” that reveal difficulties in dealing with the system that can be addressed with different forms of assistance that will be available to all those who require that particular help.
In Chapter IV of Part Two we explain that the stage for the approach we are recommending has been set by Ontario’s willingness to create partnerships among service providers of various kinds. We consider the challenges in creating this model, the need for quality assurance, how these comprehensive entry points must