Introduction to Parts One and Two2017-03-03T18:33:20+00:00

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 that participants in the Macfarlane study did not want to talk about the outcome of their disputes, but about difficulties with the process. Macfarlane observes that these unrepresented users of the family law system are in a difficult emotional state and need human contact as they move through the system. Unrepresented litigants also pose challenges for lawyers representing other parties in many different ways, ranging from the expectation that the lawyer will give them advice to being the brunt of their anger; as well, the lawyers’ clients may not appreciate why it may cost more to face an unrepresented litigant.[30]      

It is crucial that families in crisis have access to an effective system for resolving their disputes. Yet both users and workers in the family legal system have identified many difficulties, challenges and frustrations with it, despite the reforms implemented over the past few years. Our family law project has not attempted to address all the outstanding issues with the entire family law system. Rather, it focuses on entry points to the system in the belief that effective entry points with appropriate information and supports can have a beneficial effect on disputants’ interaction with the rest of the system. It also brings to the discussion a fuller consideration of the importance of diversity and the need to offer integrated services in the family justice system. Appropriate responses to the pluralism and changing nature of Ontario society are consistent with advancing substantive equality in Ontario. Integrated services acknowledge that family legal problems are not insulated from the other tensions and challenges in people’s lives and that legal problems are more satisfactorily resolved if they are addressed in the broader context. 

 

C.      The History of the Project

The Family Law project was designed after considerable preliminary consultation. Even before the LCO began full operations, an initial call for proposals had been answered with a variety of family law proposals[31] and we have received additional ones since. We undertook a study of the division of pensions on marital breakdown as one of our first projects, with the purpose of identifying “the” rule for when to value pensions.[32] Our recommendations in the final report were largely adopted by the Ontario Government as part of its reforms of family law in 2009.[33] Given the large number of quite different proposals in family law, we held a Family Law Roundtable in September 2008 to determine the most pressing issues requiring redress. Participants included clinic workers, private lawyers, academics and representatives of community organizations, the Ontario government and the judiciary. We subsequently released a paper setting out two options for a family law project, one on process and one relating to the matrimonial home.[34] Although both potential projects received support, overall we determined that we could make a more effective contribution to the area by developing a process-related project. Accordingly, in April 2009, the Board of Governors approved a project to explore entry points, formal and informal, into the family law system. We released a Consultation Paper in September 2009.[35] Following consultations, we released the results; this paper did not attempt to analyse the results, but simply reported them.[36] The results have been considered in developing the benchmarks in this Final Report, and taking into account reforms since the consultations occurred, users’ and workers’ comments, the background research, commissioned papers[37] and other feedback received up to the approval of this Report have informed our analysis and recommendations. 

The project has also benefitted considerably from the input of the Ad Hoc Project Advisory Group composed of academics, members of the private bar, government representatives, judges and workers in legal clinics and community organizations (see page iv of this Report for a complete list of members).

 

D.     The Focus of the Project: Entry Points to the System

As we have said, our project has focused on “entry points” to the family law system: how do people enter the system? What do they need to make navigating the system at the front end easier? We do not address either later points in the system or substantive family law. “Entry points” are the first approaches to resolving a family dispute an individual may take outside his or her immediate family. Some of these entry points are not associated with the formal justice system (such as doctors or religious advisers), while others are part of the formal system (that is, all government services, such as Family Law Information Centres at the family courts, and paid private services, such as those provided by a lawyer or a mediator that can assist in the formal resolution of a family dispute). In considering entry points, we use inclusivity or recognition of diverse experiences as an overriding value and we take into account that people come to the family system accompanied by all the other issues that have led to, arisen from or exacerbated their family legal disputes. 

Entry points are critical as the manner in which the early stages of a family law problem are dealt with frequently determine how the dispute is resolved. Points of entry can play an important role in informing families about their options, referring them to relevant services and advising them on the best way to address legal challenges and family disputes in ways respectful of their religious, cultural, economic and other characteristics or needs. Early intervention can often result in resolution before the need for litigation and the courts to solve a family legal problem and, in the appropriate cases, this can result in a better outcome for the family as well as a more efficient use of limited public resources. We recognize, however, that family litigants may need the assistance that only courts can provide and that in these instances, the court system must be available in a timely manner. As we discuss later, this was one of the objectives of the government and the courts’ own reforms: freeing up “court time” and resources for high conflict and otherwise difficult family matters.

Because of our focus on access or entry points, we do not consider the courts, except to explain briefly the relationship of entry points to the courts and to describe the reforms that have occurred in relation to court processes. These reforms have been designed not only to make the courts themselves more “accessible” to family litigants, but also to help them resolve their disputes at an earlier stage. Nor do we address methods of entering the system other than those applicable to disputants seeking separation or divorce. We do not, for example, consider child protection proceedings or issues that arise because one partner or parent has been charged with a criminal offence in relation to the other partner or children.

Similarly, we do not address situations in which the state compels individuals to enter the system. For example, Ontario Works[38] and the Ontario Disability Support Program[39] may require custodial parents to seek support from the other parent. These state interventions may put extra pressure on the family justice system, in particular in conflictual situations. Although this aspect of entry points may require further research, we have not included it in our research and consultations and will not address it in this Report. We also do not address in detail issues relating to children, although we acknowledge that they have an extremely important and active part at entry points to the system.[40] Identifying appropriate children’s rights and how they might exercise them merits a specific study. However, in this Report we do briefly address some of the main concerns about information for children, who often feel left out in the family law process.[41]

Some of the possible reforms we suggest build on already existing activities, while others contemplate new activities. While some of what we suggest echoes the proposals of others, we believe it is important to support these initiatives if they have yet to be implemented. We also make proposals for new initiatives, always aware that they are reliant on when funding is made available. We add additional elements to those previously proposed by others or to initiatives already implemented by government, Legal Aid Ontario, the Law Society of Upper Canada and others. In this regard, the Ministry of the Attorney General’s response to the Interim Report encouraged us “to consider proposals that maximize existing infrastructure and the use of technology whenever possible”.[42]


 II.        The Creation of Benchmarks

We have created “benchmarks” or criteria relating to the objectives that entry point family law services need to meet for them to be effective. We briefly assess the existing system against the benchmarks, as well as show how changes, some of them in the short term, others in the longer term, could more effectively satisfy the benchmarks. Although more immediate changes could usefully be implemented separately, they are designed to create a long-term coherent approach to reform entry points significantly, culminating in a redesign of how family members wanting legal help with their problems would enter the system. The benchmarks accord with the steps most people are likely to take in addressing their family disputes.[43] They reflect features of the system necessary to be responsive to differences among families and individual members of families, as well as qualities necessary for an effective resolution of their disputes, such as access to affordable and effective personal assistance. 

An effective entry to the family law system meets the following benchmarks:

  • provides initial information that is accessible to people in their everyday lives, including information about possible next steps in their efforts to resolve their dispute;
  • to the extent that the information is provided online, provides it through a single “hub”;
  • provides written information that is accessible to those without adequate access to the internet;
  • provides assistance for persons who might have difficulty accessing, reading, understanding or applying the information;
  • helps an individual determine the nature of their family problem(s) in a timely and effective way, including whether their dispute “really” is a legal dispute;
  • assists individuals to find the approach to resolving their problem that is as simple and timely as possible, minimizing duplication of persons and institutions with whom the individual must deal and promoting ease of communication and collaboration between different actors in the system (this refers to a “triage” system that assists in allocating resources according to priorities);
  • has the capacity to respond to different educational and literacy levels; the existence of domestic violence; and factors such as cultural norms, Aboriginal status, gender, sexual orientation, age, language, disability, geographic location and other major characteristics;
  • develops programs and policies in consultation with affected communities;
  • takes into account the financial capacity of individuals while ensuring the quality of service;
  • recognizes and responds to the multiple problems that accompany family problems, such as mental health or financial problems that may be a stimulus for or exacerbate family legal problems;
  • offers a “seamless” process from early stages to final resolution; and
  • is based on a sustainable model.[44]   

 

III.        The Structure of the Report

We have prepared the Report in two Parts for ease of reference, with this Introduction in common. 

In Part One, we provide background, including assessing the strengths and weaknesses of the current family justice system through an “access to justice” lens, paying particular attention to whether and how the family justice system addresses the challenge of diversity, facilitates early and effective access to information, the increasing cost of legal services, and the interrelationship between legal problems with other problems experienced by individuals facing family breakdown. In Part Two, we examine ways to improve the existing entry points to help facilitate access to family justice services by a larger number of Ontarians, in particular the delivery of information, legal advice and legal assistance. The changes we suggest here are necessary for and support the creation of the comprehensive delivery of services (multidisciplinary, multifunction “centres”) that we recommend at the end of Part Two. As we discuss in Chapter IV of Part Two, the use of the term “centres” refers to a way of conceiving of the delivery of services and does not necessarily refer to “bricks and mortar”.

Of particular importance are the changes in the system that have occurred since we began this project; we have been careful to ensure that our focus has complemented those reforms and that our suggestions for change and our specific recommendations respond to gaps in the system that continue and to which most of the reforms were not directed.

The changes made to the Report between its interim and final versions (both in form and in substance) reflect the submissions we received in response to the Interim Report as well as further research and consultation with stakeholders. This Final Report was approved by the Board on February 28, 2013 and has been posted on the LCO website[45] and otherwise distributed widely.

 

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