Part I, Section I: What we mean by “Access to Justice”

Part I, Section I: What we mean by “Access to Justice”2017-03-03T18:33:20+00:00

Access to justice has been defined simply as access to lawyers and courts and as complexly as “an equal right to participate in every institution where law is debated, created, found, organized, administered, interpreted and applied”.[46] Broadly, it has been described as “an integral part of the rule of law in constitutional democracies”.[47] Valid as these conceptions might be, they do not help in identifying the content of access to justice. In this sense, increasing access to justice may mean ensuring physical accessibility to the courthouse, simplifying procedural rules, using plain language in a statute, explaining what the law means on the internet, provision of translation, dispute resolution other than through the courts, legal aid and similar steps to removing barriers of various kinds. A more comprehensive understanding of access to justice goes beyond the legal system to encompass efforts to assess and respond to ways in which law impedes or promotes economic or social justice, for example, recognizing the interrelationship of these systems. In short, access to justice may involve steps to diminish substantive injustice in society at large.

There have been many “access to justice” initiatives in Canada over the past decade, several focused on the family legal system, including by academics and courts, among others. For example, in undertaking its “Middle Income Access to Civil Justice Initiative” several years ago, the Faculty of Law at the University of Toronto noted that “[a]ccess to civil justice by ordinary Canadians is one of the most crucial challenges currently facing the legal profession” and that “a staggering number of Ontarians are trying to navigate a complex justice system without adequate, or in some cases any, legal representation”.[48] The initiative’s colloquium held in February 2011 resulted in a book covering the lack of justice or approaches to increasing justice in family law, consumer law and employment law.[49] The Canadian Judicial Council, the Canadian Bar Association, the Federation of Law Societies of Canada, Justice Canada and others are members of the Action Committee on Access to Civil and Family Matters, chaired by Justice Thomas Cromwell of the Supreme Court of Canada.[50] According to the web site of the Canadian Judicial Council, the Action Committee is focused on “fostering engagement, pursuing a strategic approach to reforms and coordinating the efforts of all participants concerned with civil justice”.[51]

This Final Report in the LCO’s Family Justice Project has focused on access to justice in the sense of having sufficient information and assistance to enable family members involved in family disputes to make determinations about whether they want to enter the family legal system and if so, to take subsequent steps through the process. Although this is in one sense a procedural understanding of access to justice, it is linked to substantive justice through enforcement of rights for which effective entry points are necessary. It is also linked to a broader understanding of access to justice because 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. Access to justice is linked to advancing substantive equality. As we said in our final report in our older adults project, 

The starting point of an approach to the law that advances substantive equality…is to recognize the existence of older adults as a group who may in some respects have different needs and experiences from many younger persons, whether due to the accumulated effects of their life courses, social structures, or marginalization and stereotyping of older persons…[O]ne must take those particular needs and circumstances into account when designing laws, policies and programs.[52]

The same applies to other forms of diversity, such as enthno-racial identity, Aboriginality, gender, sexual orientation, disability, economic status and geographic residence, among others, when these differences matter to whether people benefit from the system and when recognition is consistent with the commitment to equality. The breakdown of families may have implications for economic justice as family members face a diminished source of financial support and must live as two rather than one or for the smooth functioning of society as children grapple with this major disruption in their lives. These consequences are not inevitable, nor are they necessarily concomitant with the dissolution of a marriage or common law relationship. Nevertheless, we cannot pretend that either family breakdown or family law exists in a silo unconnected to other personal and societal ramifications or to other areas of law. 

In other words, we believe that an accessible family justice system must be affordable and easy to navigate but we also believe that ensuring access to justice in the area of family law requires attention to other factors which create barriers to access to justice, namely the impact of an individual’s culture, ethnicity, sexual orientation, ability, level of literacy, geographic residence, Aboriginality, gender or gender identity and the intersection of legal problems with other types of problems which arise from family breakdown.

 

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