I.            WHAT IS THE LCO’S FAMILY LAW PROJECT ABOUT?

A.      Placing the Project in the Context of Family Law Reform

In 2010, the family justice system was described as a “system in crisis” by Chief Justice Warren Winkler.[1] Listening to Ontarians suggested that “access to resources in family law in the form of information, legal and social assistance, and resolution of family law problems for low and middle-income Ontarians is a priority issue for the civil legal system”.[2] Our consultation process in support of this project confirmed that users and workers also perceived the system to be in crisis. Making changes to improve access was viewed as a high priority.[3]

Many stakeholders have heeded calls to reform the family law system. The commencement of the LCO’s project in 2009 was followed by a time of intense reform efforts by the Ministry of the Attorney General, Legal Aid Ontario and other stakeholders in the family justice system. Most notably, the Ministry of the Attorney General undertook a number of reforms of the system around the theme of “four pillars” over the period 2010-2011, which we discuss later in this Report, with the objectives of offering the same service suite to all courts that hear family cases and of improving the experience and outcomes of clients who are involved in the family courts. Other studies and bodies that have played a major role in identifying and responding to the need for family law reform include the following and we are grateful for the insights we have gained from them: 

  • Recapturing and Renewing the Vision of the Family Court (“the Mamo Report”);[4]
  • The Home Court Advantage project; [5]
  • The Superior Court of Justice Family Law Strategic Plan;[6]
  • The Ontario Court of Justice Family Law Vision Statement;[7] and
  • The University of Toronto Middle Income Access to Civil Justice Initiative.[8]

It has been important for the LCO to add value to what has been a crowded field of family reformers, including most notably the government. We have not only built on and complemented these initiatives, we have also attempted to tread a new path in our analysis and recommendations. We have focused our analysis on the need to increase inclusivity in the justice system in a way that acknowledges and responds to the increasing pluralism in Ontario society and the heterogeneity of the population, continuing problems of affordability of services and the multifaceted problems that face families in crisis.[9]

Despite a number of important reforms in recent years, which we discuss below, family law disputants in Ontario continue to face difficulties that include gaps in responding to the province’s diverse population, difficulties in understanding and using information, lack of affordable representation and inadequate response to the multidisciplinary nature of family issues. A recent study has found that unrepresented litigants find the system “unwelcoming, hostile and denigrating”.[10] Furthermore, many of the reforms have focused on the role of the courts; yet people require more assistance very early in their desire to resolve their family law problems. With these considerations in mind, we asked, “what problems do people trying to gain access to the statutory family law regime continue to face?” We identify what we have concluded are the most significant ongoing difficulties for people with family legal problems, particularly for those unable to afford a lawyer, and provide possible solutions to diminish their impact. 

For the law to be effective for those who are subject to it, access to knowledge about the law and capacity to negotiate the law, with or without assistance, is as important as “the law” itself. A “good” statute has limited value if it is difficult to understand and accessing the rights it provides formidable. The LCO’s family law project is about how to make accessing family law rights easier and more effective. We believe that this requires a greater focus on providing more accessible information and affordable services in a manner that is sensitive to the diversity of Ontarians. The project also recognizes that family legal problems are often intertwined with other kinds of family problems such as financial or mental health concerns. A satisfactory solution to the legal issues thus requires incorporating recognition of other relevant problems into the initial stages of addressing the legal issues. Therefore, for the purposes of this Report, the family justice system is defined broadly to encompass not simply lawyers, mediators and the court system but also other professionals, services and organizations that are involved in assisting individuals, whether formally or informally, in resolving problems arising from family breakdown.

 

B.      Continuing Challenges

It is estimated that about 40 per cent of all marriages or relationships in Canada end in a break-up,[11] most of them uncontested.[12] Although not always the case, family breakdown is a profound social problem which can have negative consequences, primarily for the family members in the midst of it but also for the community at large. 

One study found that over 41 per cent of respondents considered their relationship breakdown to be extremely or very disruptive to their daily life, with another 44 per cent finding it somewhat disruptive.[13] Although challenges in intimate partnerships may be resolved amicably, family breakdown may nevertheless be accompanied by at least some pain and difficulty for those involved in the same way as any major negative life event. It often has more than these effects, however, and may involve a period of stress, instability, loneliness, hurt feelings and sometimes hostility. This is even more so for families with children who are acutely affected by the dissolution of their parents’ relationship. During the LCO’s consultations with children between the ages of 8 and 13, they told us about how their parents’ breakup had affected them.

One boy talked about being woken up in the middle of the night by his parents’ fighting. Two girls talked about having to call the police themselves for fear that their father would choke or badly hurt their moms. One youth mentioned that she had to stay in a shelter with her mom for a while after the separation. Another one mentioned that it was no surprise to her when her parents separated and that she was relieved when her father left. For all of these children, their parents’ separation or divorce was an extremely difficult time.[14]

There is also an increased risk of mental and physical health problems during a marital conflict.[15] In addition, marital breakdown can affect extended family members, such as grandparents when one of the parents prevents contact with grandchildren.[16]Family breakdown can exacerbate already existing vulnerability. Recent immigrants may face problems such as a fear of deportation because of separation from their sponsor or pressure from their community to stay in their marriage.[17] Persons with a disability may face isolation and difficulties accessing services and communicating now that the individual who was assisting them is no longer with them. It is not unusual for persons undergoing separation to face many challenges apart from the legal ones.

As Noel Semple points out, a divorce (or separation) means that the cohabitation’s economies of scale are suddenly lost.[18] Since many Canadian families are economically vulnerable because of an increasingly high ratio of household debt to income, a family breakdown can have a severe impact.[19] Factors such as the availability of childcare can affect the ability of the custodial parent to work outside the home.[20] A study of abused women who left their partners found many had difficulty finding adequate housing.[21] Persons undergoing divorce and separation can face many challenges not only of a legal and financial nature, but also those related to safety, health and general well‐being. These challenges can be, and are often, interconnected. They can include other family law problems involving children (such as child apprehension or child abduction), financial problems, consumer debt, employment and social assistance.[22]

One study indicated that about 50 per cent of the respondents in Ontario had one or more justiciable problems (not necessarily family problems or linked to family legal problems), with the average number of problems being over three.[23] It found that “being a single parent is related to experiencing multiple problems. Among respondents reporting only one problem, 6.0 percent are single parents. This percentage rises to 22.1 percent who are single parents among all those reporting more than six problems.”[24] 

Trebilcock noted the phenomenon of cascading problems in his review of the Ontario legal aid system, making the following observation: 

The initial problem may be a legal problem, but without early intervention, this problem may trigger subsequent problems, legal or otherwise, such as greater demands on other social welfare programs, social housing programs, physical or mental health programs, etc. Early intervention is, in fact, cost conserving from a broader fiscal perspective in that it pre-empts these cascades. But more than this it calls for a more holistic or integrated institutional response where individuals with clusters of interrelated problems are not subject to endless referral processes that are tied to particular institutions (a silo approach) rather than particular individuals’ needs and leading to “referral fatigue” which leaves many problems unresolved.[25]

Indeed, a legal problem can be exacerbated because of the existence of other difficulties. Our recommendations in Part Two relating to comprehensive services or multidisciplinary, multifunction centres, reflect the need for our family justice system to be sensitive and responsive to these multiple causes and consequences at an early stage.

Furthermore, one partner may well face greater difficulties as a result of the breakup than the other. For example, the negative economic consequences of marital breakdown are still borne disproportionately by women as a result of the differences between men’s and women’s labour participation and care for family members, including after separation or divorce.[26] The termination of a marriage or common-law relationship does not always end the problems. Often the difficulties partners face continue; it is therefore all the more important that they be addressed as soon in the process as possible. Of particular significance is that domestic abuse does not end with the formal relationship. Between 2000 and 2009, although “most spousal homicides were committed by a current rather than a former spouse”, about a quarter occurred after separation and the victim was more likely to be female.[27]

One of the biggest challenges to the system is the number of unrepresented litigants. A study of unrepresented litigants being carried out by Julie Macfarlane still underway continues to find that users of the system generally become “overwhelmed and traumatized” as they move along the system.[28] Estimates of the number of family litigants who are unrepresented (by choice or not) range from 50 to 80 per cent.[29] Although more than 50 per cent of Macfarlane’s participants had a university degree, they still had difficulty working their way through the system. Macfarlane comments, “This is a system that makes smart people feel stupid,” and notes that even people who are legally trained are unable to navigate the system adequately on their own behalf. Indeed, lawyers who represent themselves say that they cannot believe that they are treated in the negative way they are. Although workers may be as helpful as they can be, Macfarlane describes her interviews as an “overriding tale of lament and woe”. Although family law disputants keep being told to “get a lawyer”, many cannot afford to do so, are too “dispirited” or they do not know what lawyers do. Of particular note is th