Part I, Section II: An Overview of the Family Justice System

Part I, Section II: An Overview of the Family Justice System2017-03-03T18:33:20+00:00

A.      Introduction

In this section, we provide an overview of the family justice system and discuss the barriers that people in the midst of family breakdown confront when trying to access the services they require. We have focused primarily on information about the family law system, self-help materials, legal advice and representation; dispute resolution other than the courts and in the courts; counselling and other support services; and services for children. We do not describe the entire system in detail, but in broad strokes to show the links between the entry points and the rest of the system. We link (again, broadly) particular aspects of the system with the benchmarks we identified in the Introduction to Parts One and Two of this Report (see p.7). This description reflects the reforms that have been made in the system since 2010, in particular reforms grouped around the interconnected pillars of reform introduced by the Ministry of the Attorney General between 2009 and 2011:

  • Pillar 1: Providing early information for separating spouses and children;
  • Pillar 2: Providing opportunities to identify issues and directing parties to appropriate and proportional services;
  • Pillar 3: Facilitating greater access to legal information, advice and alternative dispute resolution processes; and
  • Pillar 4: Developing a streamlined and focused family court process.[53]

The following description of the family justice system roughly follows a typical path for someone seeking to have his or her (or their) family problem addressed by the legal system: the effort to obtain initial and then more advanced information; efforts at self-help or the seeking of legal or other expert assistance; attempts to resolve the dispute(s) short of going to court; and, in some cases, using the court for a definitive resolution of the dispute or some portion of it. This way of describing the system is of course artificial, since people are likely to seek information throughout, may avoid non-judicial forms of dispute resolution, and may not only go to court but return to court; similarly, unrepresented litigants are more likely to use self-help materials than those who are able to retain legal assistance.

It is crucial to appreciate, too, as the LCO’s consultations in this project showed, that the nature of the problem or the environment in which people find themselves may influence how they enter the family justice system.[54] If a couple wants to save their marriage and views the problem as spiritual, they may turn to a religious advisor; the extent of someone’s financial resources may influence whether he or she bypasses other methods of obtaining information by going to a lawyer early in their efforts to resolve their problem; a woman experiencing domestic violence may seek out violence against women services; someone who is in a depressed state may phone an emergency distress line; if the family includes children, the parents may have access to information about legal, health or social services from their children’s school or a child may speak to a trusted teacher. People’s “choice” of options are influenced by how isolated they feel, whether they trust the legal system, the stage of their relationship or whether they have been brought into the legal system by others, including their partner or children’s aid, for example.

Some of these initial conversations will satisfy the individual that he or she can address difficulties themselves or with informal assistance. In other cases, though, they will be preliminary to making contact with the legal system. This is where we start our journey through the system. However, we need to remember the importance of these earlier connections and to the extent possible, ensure links between them and the formal system.

 

B.      Entry Points to the System

1.       Legal Information and Self-Help Tools

As we said above, people with family disputes are most likely to begin their search for information by talking to friends and family about their disputes; they may also speak to trusted advisors, such as a religious advisor; they may raise their concerns with their doctor; they may seek help from someone whom they met when they had previous dealings with the legal system (such as a court interpreter).[55] Not all of these people have familiarity with the system and not all will advise the individual seeking assistance to look for more reliable sources. Some professional advisors will be able to direct those seeking their assistance to another source of information, whether written or in person. It is important, therefore, to provide information in ways that those needing assistance will see it when they need it (such as when their family problems are on their mind when doing the weekly grocery shopping); and to provide information that is easy to understand or is accompanied by assistance.

Family members looking for information about the system will find that there is a great deal of public legal information available from a variety of sources to assist families in crisis. This information is provided online, in written form and in person in varying degrees of detail. Although a number of publications on the federal and Ontario government websites were not developed for online users, more recent information has been explicitly designed for interactive use on the internet. In early 2011, the Law Commission of Ontario counted nearly 700 pages of public information in Ontario which were available through more than ten internet sites. Many of the publications can now be accessed as links through the website operated by Community Legal Education Ontario (CLEO).[56]

The Ministry of the Attorney General’s (MAG) website functions to some extent as a main hub for public legal information on Ontario family law, focusing on the courts. Much of its Guide to Procedures in Family Court was revised in 2012.[57] The MAG online “booklet”, What You Should Know about Family Law in Ontario, available in several languages, explains the system in “plain” language, using easy to understand examples.[58] People seeking information about specific topics may be able to find it quickly. For example, MAG’s “Family Law” website provides information on various aspects of family law, using questions and the answers sometimes include links to other sites. There are also federal materials which can be accessed online. The Department of Justice’s Supporting Families Initiative offers information for parents and children[59] and Canada Benefits has a section on Divorce or Separation with an application kit.[60]

In March 2011, Legal Aid Ontario (LAO) launched its Family Law Information Program (FLIP), available in two versions, one of which can be completed instead of the court-based Mandatory Information Program (discussed below), and in written and audio form.[61] The program is easy to navigate and gives viewers options about how much information they want.

The Law Society of Upper Canada‘s information portal, designed in consultation with the Ministry of the Attorney General, Legal Aid Ontario and CLEO, has been in operation since June 12, 2012.[62] It is a laudable step that reflects the desire of the Law Society to contribute to helping people access the system. The purpose of the portal is to provide “an easy-to-use online gateway to comprehensive information and guidance for parents and children involved in a family law dispute”.[63] However, a web search using the kind of terms that someone with a family problem might use does not turn up the portal (it does turn up the Ministry of the Attorney General’s family law site). Once found, it provides information or links to information for parents and children. It may be most helpful for individuals who have already had discussions about certain matters; for example, clicking on “I’m separating or thinking of separating” takes the user immediately to the options of agreeing or not agreeing about “what will happen with the children”. The main focus of the portal is on using legal services and going to court, although it does provide other information such as “violence at home”. A user who searches “legal aid” will be taken to a link with the Legal Aid Ontario website; someone looking for a lawyer will in one click be taken to the Law Society’s own website and provision of information about finding a lawyer. The program appears to be available only in English.

CLEO[64] and Family Law Education for Women (FLEW)[65] post plain language publications on family law, offered in several languages and formats. In addition, they have specific information for victims of domestic violence or situations of child abuse. FLEW offers family law information designed for immigrant, refugee and non-status women, Aboriginal women, Francophone women, immigrant women who undertake domestic work or are caregivers, Jewish women, Muslim women, women of Christian faiths and women with disabilities. FLEW’s brochures and web-based information and some of CLEO’s information are available in 14 and 8 languages, respectively. CLEO has posted information on several topics in substantive family law (dated February 2012) in English and French. CLEO advised us that on an annual basis, it receives orders from 2,000 organizations for its family law brochures.[66] In 2011, it distributed over 130,000 brochures to a wide variety of community organizations, government offices, legal clinics as well as hospitals and doctors, housing providers, and educational institutions.[67] In addition to these sources, many other organizations, including law firms, provide online information about family law.

While the individual sources of written, audio and other format information may address the needs of specific user groups, when they are offered online they become part of a vast amount of information that can be hard to access without a clear entry point. The LCO’s own review of the various websites with family law online information revealed that it was often complex and detailed and, perhaps unavoidably, eventually highly reliant on legal language, leading to concern that much of it would not be “accessible” or understandable to many people seeking information at the early stages of their dispute.

Other information can be obtained from actual persons, including the Family Law Information Centres (FLICs)[68] and the Mandatory Information Program (MIP),[69] both located at courthouses, although they do not require the individual to have filed an application in a family matter to access them. The FLICs provide pamphlets on separation, divorce and child protection matters; MAG’s Guide to Family Procedures; and information about legal services, the court process and court forms. They also provide limited access to a legal aid Advice Lawyer and an Information and Referral Coordinator (IRC) who will provide information about forms of dispute resolution and relevant resources, and referrals to court-based family mediation services. Until fall 2011, mediation and information services were available at 17 court sites in Ontario; they are now available at every family court. The government has contracted with service providers to provide these services and “[t]he Family Policy and Programs Branch provides oversight to these providers, policy support, and financial accountability for these contracts.”[70]

A study of the FLICs over the period 2003 to 2006 expressed concern about a lack of consistency and sometimes a lack of essential facilities.[71] For example, opening hours and physical space varied significantly at the time of the research. Most FLICs did not have a child-friendly area. The staff worked part-time and there was limited cooperation with community organizations. There were not always computer terminals. The workers who were interviewed for the Mamo Report expressed doubts about the effect of the written information available at FLICs. Although the quality of the materials was not in question and some publications were popular with users, the Report concluded that “[t]he utility and possible effectiveness of pamphlets/brochures compared to the cost of producing such materials should be reviewed to ensure that resources are being used effectively”.[72] The Mamo Report did recommend that the FLICs should be “the essential entry point into the system”, a recommendation followed by the Attorney General in expanding the FLICs to all court sites.[73]

The LCO’s consultations in 2010 (prior to the expansion of FLICs to all court sites) showed that there were still inconsistencies in the services being provided by FLICs and that users’ experiences were mixed.[74] For example, one FLIC had an onsite social worker, an extensive network of community organizations to which it could refer users, a quality control mechanism and capacity for assisting about 48 users per day. Other FLICs, however, had very limited opening hours and no meaningful legal services connected to them. It was also mentioned that one FLIC focused more on the court process than on collaborative procedures.[75] French language capacity also varied.[76] All FLICs now have Advice Lawyers to whom someone who is eligible may speak to for 20 minutes and IRCs, although smaller centres may not have them available full-time.[77]

In 2010, Brenda Jacobs and Lesley Jacobs noted the concerns of professionals that the FLICs are intimidating for some users. Professionals also contended that a referral to a FLIC is part of an adversarial approach and others were not convinced about the usefulness of the services provided by a FLIC for the particular needs of clients.[78] People in smaller cities reported unease about the public visibility of going into the courthouse, where FLICs are located.[79] The LCO’s respondents noted similar concerns about privacy when they visited the FLICs.[80]

Although these studies were conducted prior to the 2010-2011 reforms, or shortly afterwards, many of the issues articulated did not relate to the number of FLICs or their presence only in some courts, as was earlier the case. Therefore, it is not clear whether at least some of these concerns are not still applicable. It is not necessarily straightforward to obtain information about the FLICs. Clicking on one listing on MAG’s website to obtain information about FLICs reveals a list of communities; clicking on the name of a community provides the names of mediator services and a telephone number for the FLIC.[81] However, there is separate listing of FLICs with addresses and telephone numbers.[82] It is also possible to find out more about individual FLICs and the services they provide as long as the individual searching for the information identifies a particular FLIC.[83] 

The Superior Court of Justice in Toronto requires all litigants in its court to attend a Mandatory Information Program (MIP) Session before the case can come before a judge. These are provided by volunteer lawyers and non-legal experts who use a standardized script, but apparently do not answer questions. Since September 2011, the MIP has been extended across the province and it is possible to undertake the session online[84] and to attend a session without filing an application.[85] The program is not available after 5:30 pm in most centres, while in Toronto it is held in the evenings. Although currently available only in English and French, it is intended that the script be translated. The Chief Justice of the Superior Court of Justice, the Honourable Heather F. Smith, advised us in her response to the Interim Report that since spring 2011, an additional 20,000 individuals had benefitted from the extension of the MIP; more would have done so since then. Furthermore, “[c]lient satisfaction rates for these programs have reached a remarkable 75%” and “mediation settlement rates are reportedly at an amazing 80%”.

The MIP provides comprehensive information about the system and, importantly, provides information about ways of resolving family disputes other than through the courts, as well as ways to address other family problems. The MIP’s location in the courthouse makes it easy for litigants to find services such as court-based mediation. In its response to the LCO’s Interim Report, MAG explained that the MIP offered at the courts “is the vehicle used by MAG to help ensure that litigants entering the court system obtain standard basic information on their rights, responsibilities and options for resolution”. There is an advantage to providing standard basic information, but it may not be appropriate for everyone. For example, we heard that clients with just one issue find the three hour lecture irrelevant to their particular needs.[86] A lawyer suggested in an individual submission to the LCO that the MIP might be useful for unrepresented litigants, but not for those represented by counsel who will explain basic procedures to their clients.[87]

Despite the vast amount of information available, its value to people needing information varies. For example, Birnbaum and Bala’s 2011-2012 study of litigants’ experience with the family law system indicated that about 45 per cent of the respondents had used the MAG website, of whom 24 per cent found it “very helpful” and 73 per cent thought it was “somewhat helpful”.[88] One respondent particularly noted, “Having all the information online and having someone to talk to in court to help you figure out how to navigate through the court system makes it easier to settle disputes without a lawyer”. On the other hand, one respondent found it “hard to find a definite answer to anything”. Many of the 40 per cent of respondents who had used the brochures and pamphlets at FLICs found them helpful, but some nevertheless commented on the difficulty of understanding them. On person said, “Some words are too big, especially for people that have disabilities”.[89] As a “user” of the system said in his submission to us in response to our Interim Report, “You refer to many online resources but not everyone has access to the internet and the resources they have access to are not user friendly or able to be understood by regular people with no legal training.”

Listening to Ontarians found that most respondents were unaware of public online resources.[90] Only one in eight of the persons surveyed had heard of any of the government sites mentioned. We also found in our consultations that many people were unaware of the various sources of information. Until March 2011, when Legal Aid Ontario launched its online FLIP, only very few users accessed the written information provided or funded by the government or LAO. During the LCO’s consultations, it was nevertheless mentioned that, in comparison with other sources of information, provincial and federal government websites were the best known. It was recommended that web pages should not be overburdened and should have clear links corresponding to people’s needs which may be an indication that the information did not meet users’ expectations in this respect.[91]

The challenges in Ontario’s provision of public online information are not unusual. The 2012 Organization for Economic Cooperation and Development (OECD) report, The Future of the Family to 2030, describes the “failure of e-government” for families: “Most e-government websites have a lot of information – the shop window – perhaps even too much information online”.[92]

Individuals using information, however acquired, must be able to read it, understand it and apply it to their own situation. Each of these tasks requires an increasing level of literacy. Yet a significant minority of people lacks the required literacy even to understand the information, particularly since it can quickly become complex and use legal terms. A study of literacy[93] shows that about 20 per cent of Ontarians have level 1 (lowest) prose literacy level and about 25 per cent have level 2.[94] To apply information requires level 3 at a minimum, depending on the information context. The results for document literacy are similar.[95] Women have slightly higher prose literacy scores, while men tend to have higher document literacy scores.[96] As will be discussed more fully below, the difficulty in comprehending information is exacerbated further for some groups.

Even individuals who do not face literacy challenges will have difficulty understanding legal information. For many people, their efforts to work through the system will take them into alien territory: they know little about the legal system or its legal language; they may assume they need a lawyer, yet be concerned that they cannot afford one; they may have fears about how their partner will respond to their efforts to take their problems outside the family; they may be facing conflict between what they need themselves and what their children need. In short, they require information that takes them step by step, that they can trust and that they can understand and use.

Given these difficulties, many people would prefer to speak to someone to obtain information in order to relate the information to their own situation. The MIP, while providing basic information, does not allow for that individual approach. Other people are reluctant to attend at a courthouse. Some individuals may prefer at least to begin with members of their own community working or volunteering in community organizations, band offices or shelters. These workers or volunteers can be described as “transitional workers” or “trusted intermediaries”. For individuals who have literacy problems or are not used to dealing with a legal process, these trusted intermediaries often “translate” into everyday language the written and online information which is available through public legal information. The intermediaries can also assist individuals in identifying what is required to solve their problem and assist by contacting specialist providers of information and advice. However, the contribution of these intermediaries may be limited by their lack of training and education in legal matters, as well as their lack of access to expert advice.

In short, initial efforts to obtain information may face serious barriers, including language, literacy, computer availability and unfamiliarity with the system as a whole. Online information is here to stay and it is increasingly being employed because of the lack of affordable legal advice. The in person advice that is available is limited and often requires an individual to attend at a courthouse. There have been serious efforts to provide information to those in family disputes, in a variety of formats, including written information, and in this sense the information satisfies the benchmarks. For many people, the initial information does not satisfy the benchmarks: it is not always easily accessible to people in their everyday lives; it is hard to understand – even when it seems easy at the beginning it inevitably becomes harder to follow and even harder for people to apply to their own situation; most seriously, there is inadequate personal assistance at this stage that would help people decide whether they even want to enter the legal system. We consider this further below when we explore legal advice and representation.

The concerns about applying information to the individual’s own situation are particularly appropriate with respect to self-help tools. Self-help tools are programs or systems that are meant to allow individuals to prepare court documents which have historically been prepared by lawyers. These tools include interactive court forms and interview-based document generators.

Prior to 2009, there were virtually no self-help tools available for family law in Ontario. In May 2010, MAG launched the Forms Assistant Web Tool which guides litigants through a series of plain language questions, similar to a QuickTax program. As of the date of approval of this Report, February 28, 2013, there were over 160,000 visits to the site and some 66,000 family forms were completed or partially completed using the Forms Assistant. The tool includes eight forms related to family law, including the Application and Answer, the Parenting Affidavit, and Financial Statements, among others.[97] Increasing the availability of self-help tools is consistent with the assumption that many individuals will guide themselves through the family legal system.

For relatively simple cases, for people not facing the challenges we identified above, such as lack of literacy, lack of computer familiarity or language, or simply lack of familiarity with the system, they may be satisfactory. In such cases, they may meet the benchmark of moving forward to the next stage of resolving their problem. Others, however, may need assistance in completing the forms and in understanding their relevance in the context of the system as a whole.

 

2.       Legal Advice and Representation

The information needs of people change as they move through the system. Even if the initial basic information helps them choose among options for resolving their problems, they subsequently need more in-depth information about how to navigate the option they select. At this point, the information will be more complex and can likely be interpreted only with the assistance of a trained professional. Historically, this has meant legal representation. Today legal representation is primarily limited to persons with relatively high incomes or the very poor, and full legal representation only in the case of those with considerable discretionary resources. Yet the system is still for the most part based on the need for a lawyer. It is not surprising that most information sites advise people to obtain the advice of a lawyer.

The lack of affordable legal services is a significant factor in the increasing number of unrepresented litigants as discussed above. It has been estimated that between 50 and 70 per cent of litigants in family law cases are not represented.[98]

From research and surveys that have been conducted in Ontario and in comparable jurisdictions, a general picture emerges of unrepresented litigants who, despite the fact that they frequently have higher education, have “an overwhelming need for procedural advice”.[99] Such advice and support can include information about court procedures and forms and the rules of evidence. For people in vulnerable positions because of multiple problems, research shows that they often do not know where to go for advice and that they are in need of help at entry points to the civil justice system.

Anne-Marie Langan’s 2005 survey among 35 unrepresented users in the Kingston Family Court showed that users perceived “filling out forms” (60 per cent) “knowing my legal rights” (57 per cent) and “negotiating with/talking to lawyers” (37 per cent) as raising the most difficulty.[100] Sixty-five per cent thought that self-representation increased the amount of time it took to resolve the matter. In 57 per cent of the cases self-represented parties were not able to settle.[101] We do not know if parties represented by a lawyer would be more inclined to settle, although there are indications that this may be the case.[102] The Ontario Association of Interval and Transition Houses (OAITH), in its response to our Interim Report, points out that men who are accused of abuse and who are unrepresented may use or try to use the proceedings “to intimidate and harass their former partners” and that suggests that “the court must pay special attention and intervene” when this occurs. This point is equally valid at the earlier stages of the process on which we have focused.

The 2008 Study on the Experiences of Abused Women commissioned by Luke’s Place showed that 48 per cent of the women sampled found that there were not enough services and resources in the family justice system, although the survey showed that they were very satisfied with those services they had accessed. The women had difficulties with paperwork, understanding the procedure, court/staff responses, knowing what evidence to submit and how to act in court, and dealing with their ex-partner and/or his lawyer.[103] Some of these concerns may have been addressed by the Family Court Support Workers (referred to later) and the expansion of FLICs.

Birnbaum and Bala’s study of lawyers’ attitudes to unrepresented litigants found that, according to lawyers who responded, unrepresented litigants routinely turn to the lawyer representing the other disputant for information and advice.[104] Unrepresented litigants were also said to “have no clue what evidence will help them”. The lawyers indicated that reaching an out-of-court settlement is more difficult when one of the disputants in a family dispute is unrepresented. This is, according to lawyers, because unrepresented parties tend to have unrealistic expectations.

In their study of litigants, Birnbaum and Bala examined the experiences and perceptions of both represented and unrepresented litigants. They came to the following conclusions:

The most important reason for the lack of representation is the inability of family litigants to afford a lawyer and the lack of eligibility for Legal Aid. Many of those without lawyers are being helped by an expanding range of government services, and some feel reasonably comfortable dealing with the family justice process without retaining a lawyer. For those with a low conflict separation, adequate education and literacy skills and relatively simple financial affairs, the lack of representation may not present a large problem, at least for the litigants. Given the cost of legal services and the availability of “free” or subsidized government services, for some individuals the decision not to retain counsel to resolve family matters may well be a rational decision (though these litigants are imposing costs on the justice system and government, and often on the other party). There is however, also a very significant portion of self-represented family litigants who are unable to afford a lawyer in cases where there are serious concerns about the effect of lack of representation on outcomes for litigants and their children. Our preliminary results indicate that for about one half of unrepresented litigants, the primary reason for not having a lawyer was that they did not have enough money to pay a lawyer and were not eligible for legal aid. Many of those without lawyers expect worse outcomes and less protection because they are without counsel.[105]

A number of recent studies have examined the phenomenon of unrepresented individuals. Addressing the Needs of Self Represented Litigants in the Canadian Justice System classified self-represented litigants (called “SRLs” in the report) into the following seven basic types:

  • The primary group of SRLs includes people with a lack of social resources (low income, low education, low literacy, etc.).
  • Low income SRLs with some social resources (people who cannot afford a lawyer but who have sufficient social resources and education to seek available services).
  • SRLs living with social barriers that interfere with accessing justice (i.e. people living with challenges resulting from physical or mental differences, language and cultural barriers, people living in remote locations, etc.).
  • SRLs who are unable to find a lawyer (usually people who live in small towns or remote areas).
  • SRLs who were previously represented but who are no longer represented (usually in lengthy cases with no permanent resolution).
  • SRLs in cases where representation is said not to be necessary (i.e. small claims, traffic court, etc.).
  • SRLs who could access representation but prefer to self-represent (usually well-educated people who distrust the legal profession). SRLs in this latter category have been found to be a “significant minority” of the overall SRL population.[106]

Notwithstanding the reason why people are not represented by counsel, the phenomenon of litigants without lawyers is taxing on the justice system and the parties. The system’s design is premised on the presence of lawyers. The lack of legal representation threatens the justice system and the well-being of Ontario families in several ways:

  • Some Ontarians may not access the family justice system at all. This may have grave consequences on parties and their children, who may forego, for example, exercising their right to obtain financial support from a parent and have reduced economic circumstances as a result.  Surveys conducted in connection with Listening to Ontarians found that three quarters of those reporting problems said they experienced at least some disruption in their daily lives because of their problems, with a significant number reporting stress-related illnesses, health problems, loss of employment or income and relationship breakdown.[107]
  • Self-representation is stressful and will in particular affect lone-parent families and their children who already face financial and personal stress. For example, according to one B.C. woman who was unrepresented in her family law case:
    After I became self-represented I had to draft my own court documents…I had to do my own research and present my own evidence…Dealing with this case became like a part-time job for me…This has meant keeping very late hours in order to ensure that my children do not have to deal with what is going on. Because of the time I had to spend working on this case, I lost a job…because I didn’t have the time to do both the job and prepare for court appearances.[108]
  • Self-represented people will turn to the courts because it is the only resource that they do not have to pay out of pocket for and therefore cases which could have been resolved without judicial intervention are being dealt with by our costliest resources. Equality before the law for disputants and the “symmetry” of the process may be at risk if one person has access to legal assistance and another has not, or if one person has access to more extensive legal assistance than the other person.
  • The “asymmetry” between a represented and unrepresented litigant may also affect the person who is represented. The extra time which is often needed in such cases is reflected in extra lawyers’ fees for the represented party. Many lawyers surveyed by Birnbaum and Bala in their 2011 study believed that their client was disadvantaged in one way or another when the party on the other side was unrepresented.[109]
  • Self-representing (unrepresented) litigants put pressure on the system and its workers as they need more guidance and are more likely to make procedural errors. Despite some guidance for judges, in practice judges’ attitudes towards unrepresented litigants can vary. Judges participating in the LCO’s consultations mentioned that they found it sometimes difficult to deal with unrepresented litigants. Mamo, Chiodo and Jaffe describe the frustrations of judges about unrepresented litigants who have not received input from duty counsel.[110]
  • Court cases in which one or both parties are unrepresented can incur significant delays. 
  • Court staff will face extra pressures because they have to deal with unrepresented litigants who can be impatient.
  • Lawyers face communications pressures because of unreasonable unrepresented litigants with whom they have to deal.
  • When users have limited access to lawyers because of costs or availability other workers outside the court system can face a burden of work. This is the case for legal support workers and transitional support workers who are not lawyers but have some legal knowledge and typically work at legal clinics or shelters for women who have been abused.

Reforms to date have not addressed the lack of legal representation for a large segment of people facing a family law problem. Therefore, there continues to be no individual or resource to help many individuals facing family breakdown apply the legal information available to the facts of their case. If individuals choose not to engage they may never have their legal needs met. For example, the UK Justice Review indicated that a consequence of a proposal to reduce access to legal aid in the UK could be “that some parents will simply not pursue their dispute leading to some children losing contact with a parent”.[111] Unmet legal needs have profound social, economic and health consequences.[112]

Although data about people who are not represented by lawyers are limited, it is reasonable to conclude that the low eligibility cut off for legal aid services and the great expense associated with full representation in a family law matter means that there is a wide economic spectrum of people who do not have legal representation. Listening to Ontarians emphasized the importance of distinguishing between the needs of low-income and middle–income Ontarians: “While the needs of both are critical to access to justice, programs designed for one group may not be appropriate or effective for the other.”[113] To date there has been no systematic approach to tackling the issues raised by the large number of people who do not have legal representation, let alone a nuanced approach which would factor in the diverse socio-economic circumstances of people without lawyers.

Representation or other forms of assistance at early stages are expected to reduce the need for litigation, and could be less expensive, not only for individuals, but in the long run for the system. Litigation is expensive. In 2009, the average legal fee for a contested divorce in Ontario was about $12,000 per party.[114] The average legal fee for a case resulting in a trial in Ontario is much higher: over $45,000 per party.[115] Retaining other private sector professionals such as mediators or assessors may add to the cost of Ontario divorce and separation cases.[116] To qualify for a legal aid certificate, single persons will be eligible only if their income is below $10,800, although they may be able to obtain a certificate subject to a contribution agreement if their income is between $10,800 and $12,500.[117] To qualify for duty counsel services, a single person will be eligible only if his or her income is below $18,000.[118]

Historically, LAO’s model of service delivery presupposed litigation as the primary framework for resolving family law disputes. The blocks of hours granted under the LAO’s tariff for certificates are geared mainly toward initiating and prosecuting or responding to and defending a law suit. The tariff provides limited hours for negotiation or participation in alternative dispute resolution (ADR). Traditionally, LAO provided only limited upfront information and case assessment. Once a client was determined to be financially eligible, they were either directed to duty counsel (in cases where the matter is considered straightforward) or provided with a certificate which enables them to retain a member of the private bar.

Legal Aid Ontario has made significant changes to its family law service delivery, however, in response to the recommendations in Michael Trebilcock’s 2008 review of the legal aid system.[119] It has taken steps to improve its service model to support a front-end loaded family justice system which provides alternatives to litigation. In January 2010, the provincial government made a $150-million investment in Ontario’s legal aid system, including $60 million towards base funding on an ongoing basis. This enabled LAO to make a number of changes to its service delivery model including the following: telephone services which assess the potential client for financial and legal eligibility for other services and which also connects potential family law clients to services that can assist with family breakdown (such as counselling) and dispute resolution alternatives (high risk or urgent cases are diverted to litigation services); a telephone summary legal advice line; advice lawyers at FLICs and Family Law Service Centres at seven locations, offering a full range of services;[120] duty counsel services in Family Justice Centres for victims of domestic violence in Kitchener and Peel; and mediation services. Thus LAO has been able to tailor its services to be proportional to the client’s needs, from summary legal advice, to drafting to full scope representation.  Service through calling  LAO on its toll-free number can be provided in 200 languages, including 18 Aboriginal languages and dialects. [121]

In an effort to provide some services for people who cannot afford full representation some lawyers have begun to provide limited retainer services (called colloquially, “unbundled” services), defined by the Law Society of Upper Canada’s Rules of Professional Conduct as “the provision of legal services by a lawyer for part, but not all, of a client’s legal matter by agreement between the lawyer and the client”.[122]

A number of concerns have been expressed about the unbundling of legal services. One concern is that individuals may not be able to make sound decisions about which services to obtain on a piecemeal basis. Other concerns are that limitation periods will be missed and critical litigation elements will be overlooked by the lawyer and the client. A divided responsibility for parts of the file could reinforce the sense that no one person really has the whole picture. LawPRO, Ontario’s legal profession insurer, has expressed concern that “the root causes of the most common malpractice errors that LawPRO sees are at least equally, if not more likely, to occur during the provision of unbundled legal services.”[123] LawPRO explained that in the United States, lawyers have been found liable for malpractice “for failing to warn the client of material legal issues or claims, even though they were not part of the limited scope representation agreement”.[124]

The Law Society has amended its Rules of Professional Conduct to recognize limited scope retainers as a way to enhance access to justice, particularly for people who are not able to afford the services of a lawyer for their entire legal matter and who do not qualify for legal aid. The Law Society’s amendments to the Rules of Professional Conduct in September 2011 seek to address some of the concerns identified with limited scope retainers[125] and knowledge of the limited scope retainer rules is one of the competencies tested in licensing examinations.[126]

Law students also deliver certain family law services. Downtown Legal Services, at the University of Toronto, Faculty of Law, is the only student legal clinic in Ontario offering family law services.[127] Its financial eligibility criteria are slightly more generous than LAO’s eligibility criteria. The students are supervised by a lawyer who acts as review counsel. To date, they have been granted rights of audience only at the Ontario Court of Justice at 47 Sheppard Avenue East in Toronto.[128]

Pro Bono Students Canada (PBSC) has delivered family law services since 1997 and currently runs Family Law Programs (FLP) in four Ontario law schools and eight courthouses, as well as elsewhere in the country. The Ontario FLP is partnered with Legal Aid Ontario. According to the PBSC’s Family Law Program Description, “[i]n 2011-2012, [169 volunteer] students assisted well over 2200 clients [in Ontario] with their court forms, and helped them navigate through the complex legal system”. With funding from the Law Foundation of Ontario’s Access to Justice Fund, PBSC is expanding the program in Ontario and other areas of the country.[129]

Additionally, many first year students are participating in a new FLP pilot project at Osgoode Hall Law School and the University of Toronto, Faculty of Law that sees them shadowing family practice lawyers and other practitioners (such as mediators), as well as judges at the North Toronto Family Court, and providing support to litigation lawyers or developing public legal education workshops for women survivors of domestic violence.[130]

There may be something to learn from other jurisdictions in this regard, such as the JusticeCorps Program in California under which students provide services to self-represented litigants in a court setting.[131] Through the program, undergraduate students (not law students), supervised by court staff members, volunteer in self-help centers and offer three types of services: 1) they provide information to litigants about options and referrals to services in or outside courts; 2) they help litigants locate and complete forms and procedures through one-on-one assistance or in group workshops; and 3) they observe court proceedings and give information to litigants thereafter.[132] The students’ participation has enabled the lawyers to focus on complex cases and the centres to serve a higher number of clients. Judicial officers noticed an improvement in the quality of hearings and orders being made where litigants had been helped by JusticeCorps members.[133] Furthermore, 68 per cent of JusticeCorps services were provided by volunteers in a language other than English.[134]

As in California, it is important that the courts be part of the process for implementing student services at the courts. According to Nikki Gershbain, the National Coordinator of PBSC, the feedback of the bench to the drafting services provided through the FLP has been overwhelmingly positive. There has been a more mixed reception to the prospect of students’ representing clients in court. If students are adequately supervised by review counsel, however, and the files they take are appropriate to their skill level and need for professional development, their participation provides a useful option for assisting otherwise unrepresented persons.[135] The Ontario Court of Justice at 47 Sheppard Avenue East does permit students who meet these criteria to appear before judges there.

Both the Law Foundation of Ontario and Legal Aid Ontario have identified articling students as a resource to improve access to justice and have undertaken initiatives to leverage the capacity of students to provide service for low-income individuals. In 2008, the Law Foundation of Ontario created the Connecting Articling Fellowships and sought proposals from various organizations including community legal clinics and Legal Aid Ontario to host students who could serve rural and remote communities and linguistic minorities.[136] In 2011, LAO concluded that articling students could be deployed to assist both staff lawyers and in some cases could be “loaned” to private bar practitioners who do certificate work and community legal clinics. The goal is to facilitate the creation of another service to assist clients and also to provide law students who are interested in careers in social justice with a window into social justice legal work and the opportunity to be rehired as a lawyer with Legal Aid Ontario.[137] Students in both programs could be assigned to family law matters. Students selecting the co-operative work placement option in the Law Society of Upper Canada’s new licensing programs might be placed with family lawyers.[138]

Other student programs that provide potential for a limited contribution to family law include Osgoode Hall Law School’s public interest requirement. Ogoode’s creation of an Office of Experiential Learning to coordinate the various experiential opportunities available at the law school promotes student involvement in a wide range of areas of law, including family.[139]

 

3.      Dispute Resolution

Although there have been efforts to encourage, in the appropriate cases, mediation and other ways to help people resolve their family disputes, in many respects, the courts remain the focus of family law dispute resolution. As we have pointed out, however, the court themselves have sought to ease the process for disputants through the implementation of new or expanded processes, such as the MIP (discussed above; we refer to other initiatives below). Nevertheless, court procedure is still complicated and taking a case to trial is difficult without legal representation. Our focus is on entry points to the family law system, but it is crucial that the access points meld smoothly into the court system in cases where judicial adjudication or assistance is required and that the courts are available to family members to resolve their disputes when other methods are unsuccessful or the situation is, for one reason or another, legally complex or of high conflict.

A 2009 submission to the Ministry of the Attorney General of Ontario stated that “the court should be the default if parties are not appropriate for a less adversarial approach”.[140] The report recommended front-end loading the system to educate people, assess their needs and divert them from litigation if appropriate in the circumstances. Thus the court system would be reserved for urgent matters, cases involving domestic violence, high conflict cases or precedent setting matters. Reforms (discussed below) implemented by the Ministry of the Attorney General over the period 2010 and 2011, as well as ongoing reforms initiated by the courts themselves, have been designed to meet this objective of “front-end loading” the system.[141]

Assessments of the system indicate the challenge. For example, according to Listening to Ontarians, four in ten people (44 per cent) with a family relationship problem had not resolved their problem within three years.[142] In Canada, about 50 per cent of all cases remain in the system for more than one year and some considerably longer.[143] The time taken to deal with a case can be related to the difficulties parties often have in resolving family disputes, for example, even with the assistance of the courts, but it is also related to the capacity of the courts to handle the volume.[144] There has been a decrease in new family proceedings, including the Family Court, Superior Court of Justice (3 per cent decrease) and the Ontario Court of Justice (9 per cent decrease), since 2007-2008.[145]

Custody, access and support are not only the most litigated matters at the Ontario Court of Justice, they are also the matters which tend to remain longer in the family justice system.[146] In 2009-2010, cases involving child access and child and/or spousal support arrangements represented the highest proportion of cases remaining in the system.[147] Of access and support issues, access was the most contested issue.[148]

Three different types of courts deal with family matters: Family Courts (which are a branch of the Superior Court), the regular Superior Court of Justice and the Ontario Court of Justice. Thirty-eight years ago, after observing that “in general the adversary approach promotes a ritualistic and unrealistic response to family problems”,[149] and that family disputes needed procedures directed at settlement and assistance if required, the Law Reform Commission of Canada (the LRCC) recommended the implementation of a Unified Family Court (UFC) to provide “one-stop shopping” for family law services by unifying the jurisdiction of the federal government and the provinces into a single court. Since then, there have been many changes to the system, including the creation of the first UFC in Hamilton and the creation of the Family Court Branch of the Superior Court of Justice in 17 court locations with reforms relating to the provision of information, the introduction of mediation and other initiatives that resemble those envisioned for the UFC. It can be said that these Family Courts are intended to unify the system without the formality of creating UFCs. Ontario would like to extend the unified family court.[150] In the other court locations, the Superior Court hears many family matters, but does not hear matters within the jurisdiction of the province which are heard by the Ontario Court of Justice.[151]

In 2009, Justice Canada evaluated the UFC, concluding the following:

  • Overall, Unified Family Courts enable better access to a specialized bench of judges and on-site dispute resolution and family justice services than non-Unified Family Court sites.
  • A specialized bench was reported to be of primary importance to the overall performance of the Unified Family Courts in meeting objectives.
  • There is some evidence to suggest that the Unified Family Court Model helps to resolve issues more efficiently.[152]

The Report noted that it had been expected that simplified procedures, specialist judges and “a full range of professional and community support services” would “speed[] up the resolution of family matters [and] reduc[e] the potential for further conflict, increasing the ability of family members to access the court and obtain other services most appropriate to their needs and offering better long-term outcomes for children and their families.”[153] To some extent, these characteristics have been introduced into the court process.

For example, Family Law Rules (Rules) were introduced in 1999 in both the Superior Court of Justice and the Ontario Court of Justice, replacing the Rules of Civil Procedure (in the Superior Court) and the Rules of the Ontario Court (Provincial Division) in the Ontario Court of Justice with respect to family matters.[154] The Rules were meant to buttress the effectiveness and efficiency of courts hearing family law matters. As of July 2004, the Rules were expanded to apply in all Superior Court of Justice court locations. The Rules and forms use plain language in order to help clients understand the court process more easily.

The Rules incorporate a system of case management, key features of which include a duty to manage cases expeditiously and fairly using at least one conference. The case management system under the Rules has been described as a “front end loaded system” which “creates a system of early judicial intervention in which attempts are made to divert the parties from the adversarial method of resolving disputes to one that is resolution-based.”[155]

The objective of the Rules is consistent with improving the process for family litigants. However, it has been found that each court delivers the steps required by the Rules in slightly different ways, creating some confusion. In response to the LCO’s Interim Report, family law lawyers in individual submissions as well as the Advocates’ Society pointed to the introduction of the Family Law Rules as a source of delay. One lawyer who has practised family law over two decades maintains that the mandated use of conferences “have added immeasurably to the cost of family litigation [and] have placed families in limbo”. Separating couples, he said, “need one thing more than any other…a binding and clear decision made regarding custody, access, child support, spousal support, residence and disclosure” as early as possible. Another lawyer commented, “The current system places tremendous stress on our clients by not permitting an easy way to ensure that they are able to pay their bills.” Of particular concern are subsections (2) and (4.2) of Rule 14, providing that, except in circumstances of urgency or hardship, the parties must attend for a case conference before bringing an interim motion. According to the Advocates’ Society’s submission in response to our Interim Report, this Rule

has resulted in significant delays and many unresolvable interim problems for individual families. Wait times for a Case Conference vary by jurisdiction, but the usual wait time is anywhere from three to six months from the date of commencement of the proceeding.

The Ontario Court of Justice has implemented single judge case management; however, Family Court and other Superior Court locations do not consistently employ single judge case management.[156] The Superior Court judges are not specialist judges, although all are judges of the Family Court branch. Although this has been the subject of criticism, we have been advised that it is necessary that Superior Court judges be able to preside over all matters addressed by the Superior Court which is a generalist court dealing with civil, family and criminal. Thus it is not effective or efficient to implement single judge case management. Furthermore, although the Rules were meant to assist litigants and courts in the goal of resolving cases more effectively and efficiently, their ability to do so is impacted by the volume of cases facing the court.

In April 2009, the Superior Court of Justice issued its Family Law Strategic Plan, among the goals of which were the following:

Collaborate with all levels of government, justice partners and stakeholders to ensure the availability of comprehensive front-end family court services to all litigants, both represented and self-represented. At a minimum, the following services should be available and fully resourced across the province: Family Law Information Centres, Mandatory Information Sessions, Mediation, Legal Aid Services, Supervised Access Centres and Support Re-calculation Services.[157]

One of the underlying principles of the Family Court is commitment to early intervention and non-adversarial resolution of family disputes and to this end representatives of the Superior Court of Justice have worked closely with MAG and LAO to roll out the services described above, as well as Information and Referral Coordinators[158] and the expansion of the Dispute Resolution Officer Program, initially implemented by the Superior Court of Justice in Toronto, to other areas of the province.[159] In requests to change an order, Dispute Resolution Officers (DROs) undertake a case conference designed to facilitate settlement and narrow the issues in dispute, after which the parties may or may be required by the DRO (depending on location) to attend a judicial case conference. There is a “strenuous” process of selection for DROs, who are volunteers (receiving a small honorarium), and the most senior lawyer involved is in charge of the program.[160] According to Justice Canada, which contributed funds to the DRO program, it has had a 63 per cent success rate,[161] although we have been advised it may be as high as 80 per cent. Parties are able to meet with a DRO within ten days.

These attempts at resolving disputes before they reach a judge or before a judge undertakes an adjudicative role are consistent with the view that, while in some cases a court adjudication  of a dispute may be appropriate, in many cases it is not.

Some courts have initiated processes to help move cases through the system quickly. For example, the Ottawa family case manager pilot project was initiated in 2007 in response to concerns expressed in the report, The Family Court in Crisis.[162] The pilot project relies on the appointment of Family Case Managers; these are masters who have the jurisdiction to resolve procedural issues in the Family Court.[163] This program appears to have significantly reduced delays and increased the efficiency of using judicial resources.[164]

Victims of domestic violence who are involved in a family dispute in the family justice system face particular challenges. In 2008, the Family Law Act and the Children’s Law Reform Act were amended to address some of the difficulties.[165] The Integrated Domestic Violence Court (DVC) was established at 311 Jarvis Street in Toronto in June 2011 as a pilot project to provide a single judge to hear both the criminal and the family law cases (excluding divorce, family property and child protection cases) that relate to one family where the underlying issue is domestic violence. This court is intended to offer a more integrated and holistic approach to families experiencing domestic violence, increased consistency between family and criminal court orders and quicker resolutions of judicial proceedings. There is now a DVC program in each of the province’s 54 court jurisdictions. A Community Resource Coordinator assists the parties in finding community resources and services. Participation in this court is voluntary; all parties must consent before the family and criminal cases will be transferred.[166]

In the spring of 2012, the Ministry of the Attorney General implemented its Family Court Support Worker program to provide direct support to victims of domestic violence who are involved in the family court process.[167] They provide information about the process, help victims of domestic violence prepare for family court proceedings and refer them to other services and supports, assist with “safety planning” (including travelling to and from court) and accompany the victim to a court proceeding when appropriate. Family Court Support Workers are based in communities across the province at centres providing services to victims of domestic violence. As are the FLICs (including IRCs), mediation and the MIP, the Family Court Support Worker programs are delivered by contract service providers.

Over the years, the difficulties with using the courts, whether inherent in the adversarial system or resulting from time delays and other problems, to resolve family disputes have given rise to a number of non-court based modes of dispute resolution. Some of these forms of resolving disputes are intended to replace the courts and some of have become part of the courts’ own processes; some are available as both freestanding and court-annexed procedures. These range from informal dispute resolution, perhaps by religious organizations, to sophisticated methods involving experts such as collaborative law, parenting coordination, mediation, arbitration and med/arb (a combination of one person’s serving as mediator and arbitrator).

Another option for clients is collaborative family law, conducted by specially trained lawyers who are expected to ensure that their clients disclose all relevant information in a timely fashion and encourage them to settle the case. In practice, after initial meetings between each client and his/her respective lawyer, collaborative law generally proceeds through a series of four way meetings including both clients and both lawyers. In other cases, interdisciplinary collaborative teams may be assembled which can include mental health professionals who act as divorce coaches, a child specialist and a financial professional. Of key importance in the collaborative process is the retainer in which it is acknowledged by the client that if the collaborative process fails, he or she must retain other counsel to litigate. Although it requires the funds to retain counsel and other experts, the Ontario Collaborative Law Federation, in its response to the LCO’s Interim Report’s reference to the cost of collaborative law, pointed out,

Many collaborative clients are of modest means, looking for a way to ensure they do not end up accumulating significant debt or eating up any retirement savings in a legal battle in or outside court…There are not studies to our knowledge that conclude a collaborative approach is more expensive than traditional adversarial negotiations.

Many lawyers will encourage their clients to attempt some form of non-court based resolution before resorting to the commencement of legal proceedings unless a situation of urgency or the health and safety of one of the parties or their children is at risk. In particular, for wealthier litigants, private mediation, arbitration and med/arb may be faster and more predictable and have the advantage of being more confidential than the court.

The costs and quality of non-judicial dispute resolution can vary and there is little research or information on either. In some cases, costs can be significant, especially when several experts and lawyers are involved. For example, mediation which aims to have a “transformative effect” to help establish a constructive parenting arrangement can be relatively resource intensive.

Non-court dispute resolution may still be difficult or prohibitive for family disputants with low economic resources. Historically, Legal Aid Ontario has not provided legal services to support clients through the process of mediation. It does provide assistance for settlement conferences.[168] Family Law Service Centres run by Legal Aid Ontario may offer mediation services.[169]

Although mediation has been available for family disputes for many years,[170] more deliberate efforts have been made recently to direct unrepresented clients to court based mediation which is either free or low-cost.[171] Mediators may be lawyers, but they may also be other professionals whose skills are particularly appropriate for family disputes. Yet these processes are also not always easy for unrepresented litigants who may not appreciate what they are giving up in a settlement. Indeed, the Ministry of the Attorney General website advises that an individual should see a lawyer before going to mediation in order to know their rights,[172] a view echoed by a participant in the LCO’s consultations who had not received a legal opinion before entering mediation.[173] As previously mentioned, in Ontario there is free and low-cost mediation connected to the court.[174] Until recently, on site mediation was offered only at the 17 UFCs and the Ontario Court of Justice in Toronto; however, it has now been extended across the province. This subsidized mediation can also be accessed before any court file begins.

The providers of subsidized mediation services connected to the courts have to comply with the professional standards for family mediation.[175] Nevertheless, there are concerns that the funding for subsidized court connected mediation is not sufficient to attract the most qualified mediators. The Mamo Report found that in some cases judges did not have faith in mediators and did not refer parties to mediation, although mediation has become more obviously part of the system since then. Participants in the LCO’s consultations also questioned the expertise and qualifications of mediators, although they recognized that there are many competent mediators in Ontario. Participants thought that other regulated professions had stricter codes of conduct, although they did not indicate their reasons for this conclusion.[176]

There are two particular concerns about mediation: that there is proper screening to ensure that victims of domestic violence are not inappropriately involved in mediation with the perpetrator and that people do not feel coerced into entering mediation. With respect to whether victims of domestic violence should engage in mediation, the Ministry of the Attorney’s website notes, “Mediation is not right for everyone, particularly in cases where there has been violence or abuse.”[177] There are different views about the appropriateness of mediation in these cases and the more recent view tends to be that the appropriate way to proceed is to develop a process that specifically addresses the concerns pre, during and post-mediation.[178]

Even if the emphasis on mediation is a “good thing”, the focus on mediation may have certain risks if the court process itself is considered unaffordable or intimidating. For some, the promotion of mediation in information and summary advice can be seen as “insistence” for users not to go to the court. Chief Justice Warren Winkler noted, in the context of the court process, that

[t]he greatest service that trial courts can provide to assist parties in mediating their disputes is to ensure: first, that judges are available to try the case if the mediation fails; and second, that trials are conducted in a way that makes them as affordable as possible. No party should be forced to take an unfair settlement at mediation simply because the opponent will be able to grind him, her or it down and drag the case out.[179]

Independent legal advice (ILA) is an important component of providing mediation services, both for the person who may be disadvantaged by any agreement reached and for the person who may have seemed to be advantaged. Both the Ministry of the Attorney General and the Law Society of Upper Canada provide information about independent legal advice.[180] In its response to the Interim Report, the Advocates’ Society raised concerns about the practice of mediating disputes without providing access to ILA and supported the provision of a discrete ILA process for individuals who reach agreement in mediation:

Lawyers require protection in this context to guard against liability issues. Parties need to understand and accept the inherent shortcomings of limited ILA. A limited scope retainer agreement, in standard form, could accomplish these twin goals. The availability of ILA Counsel would enable parties to enter into a fairly negotiated agreement with confidence and would provide a further important safeguard to redress any imbalance of power issues and ensure parties are entering into agreements willingly.

There is however, reluctance on the part of many lawyers to provide ILA for fear of liability risks. In its practice resources, LawPRO highlights the liability risks in providing ILA and it urges lawyers to keep detailed notes and use checklists. LawPRO has posted an Independent Legal Advice Checklist on its website.[181] Courts have also placed very stringent obligations on lawyers who provide ILA.[182]


4.      Counselling and Other Supportive Services

We have concluded that the availability of services in areas other than law is an important element in addressing family legal problems at an early stage, as well as later. Counselling services, for example, are widely recognized among legal professionals as being a necessary form of non-legal intervention in family law cases, especially in divorce cases with high-conflict families.[183]

One of the biggest challenges in re-imagining the family legal system is the dissonance between the system and the reality of families in crisis.  The complexity of family law matters is driven by causes and consequences that cannot be remedied by family law or a court hearing. The recent reforms go some way to address these consequences through information and referral coordinators but they do not represent an integrated response to family breakdown. Centres focusing on specific issues, such as violence against women, or on the needs of particular immigrant communities may have links with a range of social agencies. These do not necessarily offer legal advice, or offer them as a peripheral services.

The Trebilcock report highlighted the tendency of socioeconomic problems to occur in groups or clusters.[184] This was echoed by Cohl and Thomson in their study of geographic and linguistic barriers to justice.[185] Listening to Ontarians also observed that the clustering of problems has important implications for service delivery and design, since “[t]he traditional model of legal services – be it private, publicly funded or even pro-bono – segregates and isolates legal needs into discrete, legally defined categories” and thus too often ignores these cascading effects.[186]

The emotional consequences of family breakdown are often a significant impediment to the resolution of the matter. Frequently, the hurt and anger becomes a driver of hostility and escalation of the legal matter.  Family law matters can be characterized by irrational decision-making and inflexibility.  When these consequences are not adequately dealt with, it can create great difficulty in legal cases.  Lawyers are not trained to deal with the emotional consequences of marital breakdown and being required to act for someone who is trying to deal with the emotional fall out without assistance can be taxing for counsel.

The LCO’s consultations revealed how difficult it is for the legal process and emotional grieving to happen side by side. Most professionals to whom the LCO talked believed that, where possible, efforts to encourage a collaborative process, or on the contrary, where necessary, efforts to use the legal system to create a distance between parties involved in a family dispute and providing mental health support on each side separately, were essential elements to improve the family justice system. Participants in the LCO consultation process identified therapy or social work as crucial to solving family problems:

According to some consultation participants, these considerations are even more important when children are involved. They mentioned that parenting is a long term responsibility and sharing this responsibility after a separation is a challenge especially for parents who did not share care-giving activities during the relationship. Parents do not have a choice but to have at least minimal interaction with their children and with each other after they separate. Counsellors and social workers have skills to help people understand their parenting role and transition from parenting together to parenting separately. In high conflict cases, social workers can also act as parenting coordinators, which means that they can help parents develop parenting plans as well as mediate and arbitrate disputes that arise in the application of this parenting plan. In scenarios that involve violence, a clear separation between the people involved needs to be put in place to protect them. In short, consultation participants believed that coordinating social and legal services was an important consideration for family justice reform.[187]

Family law problems may also create serious economic problems as the income used to support one household must now support two. The stress on the family members can have multiple emotional consequences outside of the context of the family law case.  As Jacobs and Jacobs observed,

Often, the challenges and problems facing Ontario’s families are neither simple nor one-dimensional.  Employment issues may bleed into problems paying the rent or create health problems.  Marital problems at home may affect educational achievements at school.  Domestic violence might affect relationships with otherwise supportive extended family.  As others have noted, when families are in crisis, they experience clusters of problems, problems that are different in nature but interrelated.[188]

Jacobs and Jacobs further suggested that “by addressing problems earlier or indeed preventing new problems from emerging,…[teams of service providers] can result in considerable cost savings…[and] it is less likely that the remedies and solutions will overlap and be redundant”.[189]

While IRCs are tasked with performing issue identification and making referrals they do not perform a comprehensive “triage” function and accordingly may not be able to effectively identify the services that a family needs and provide them with a connection to the right service.

Accordingly, many people have limited or no professional assistance to help them identify their problem, and to recommend a course of action and then assist them in navigating the network of services they may require. People who are in a time of intense personal upheaval are often left to navigate on their own in order to access all of the services that they and their children need. Even if they are able to access the services, the services are currently delivered in a fragmented fashion, requiring the person to attend at multiple locations to deal with the services they need and tell their story over and over again.

Supporting Families recommended that FLICs could become multi‐functional and in some respects multi‐disciplinary.[190] We pursue this concept in Part Two of this Report.

Here we briefly discuss the kinds of services that already exist which may be employed at any time during a family dispute. Family counselling services are offered at many locations across Ontario, including in family service centres,[191] hospitals, cultural centres and mental health centres. The fees for these services vary by centre, although many publicly-funded agencies provide services for free or on a sliding scale.[192] Counselling services are usually community-based and employ a variety of mental health professionals, including psychiatrists, social workers, pastoral counsellors and psychologists.[193] Other centres offer assistance in relation to relevant matters such as employment or settlement without explicitly linking it to resolution of family legal disputes.[194]

Counselling is often recommended in low- and medium-conflict cases, but is rarely attended.[195] One writer identifies counselling and therapeutic services as “the most traditional community-based services that divorcing families use” and states that significant overlap occurs between legal and therapeutic services.[196] As parents and children often first seek counselling upon separation and divorce, counselling is also an entry point to the family justice system. If used early enough in a family conflict, family counselling may even prevent divorce in appropriate cases, and may contribute to a more amicable divorce in others.[197]

Family Service Ontario (FSO) is an association of 42 agencies offering services dealing with marital and family issues, financial problems and parenting skills. These agencies also have programs targeted at survivors of domestic violence, gay men and lesbians, persons with developmental disabilities and newcomers. In Ontario, 27 cities have at least one family service agency, many of which have specific religious and cultural connections while offering services to all members of the community.[198] For example, Family Service Toronto offers family counselling at five different locations throughout the Greater Toronto Area. Counselling can also be obtained over the phone or over a secure website. Fees are paid on a sliding scale based on household income but no one is denied services because of inability to pay. Services are open to all people living or working in Toronto and are offered in multiple languages including English, Spanish and Farsi. An LGBTQ Counselling Program is available, as is a Families in Transition program providing parenting plan mediation and a Seniors and Caregivers Support Program.[199]

Credit counselling is another family service that is often important in responding to family breakdown. Several FSO member agencies are also Ontario Association of Credit Counselling Services (OACCS) members and provide accredited family and credit counselling services.[200] Credit counsellors work with clients to create a financial assessment and provide them with options for credit and debt management. Fees for credit counselling vary, with many accredited agencies providing first consultations for a low cost or for free. In place of a one-on-one consultation, clients may ask the agency for resources (e.g., brochures or videos) or participate in seminars in their community, if available. OACCS counsellors may intervene on a client’s behalf in court proceedings and with other community service providers, and may refer clients to other services.

Jacobs and Jacobs also note several multidisciplinary centres in Ontario that are focused on non-legal family services, but offer some legal services.[201] The services can focus on different aspects of people’s problems: a number are concerned with domestic violence, while others may have a health focus, a specifically mental health focus or a broader family focus. Multi‐disciplinary approaches are most common for victims of domestic violence, such as the Family Violence Project of Waterloo Region, the Durham Region’s Intimate‐Relationship Violence Empowerment Network and the Barbra Schlifer Commemorative Clinic.[202] These service models have apparently been very successful in responding to the needs of Aboriginal communities by providing culturally-based services that respect their values.[203] Some of these centres are discussed more fully in Part Two of this Report.

 

5.       Services for Children

We have referred earlier to the negative experiences that children have with the family justice system and the impact on them of family breakdown which in some situations can be irreparable and in others, highly upsetting. In cases where the parents are conscious of the impact on their children and are able to put their own hurts aside, the children will not be untouched by what is happening to their family, but they can recover and have happy relationships with both parents. In some cases, there is no doubt that the impacts can be highly deleterious and long-lasting.[204] We do not suggest changes to the current system with respect to how it deals with children’s needs, since we believe this would require a more thorough analysis than is possible in this project. Some young people in our consultations expressed concern about the extent to which their views were considered seriously and had doubts about the effectiveness of the system. For example,

all children had a negative perception of lawyers. They were particularly frustrated by the fact that lawyers either did not ask them for their opinions or, when they did, did not seem to hear them. One youth who had her own lawyer reported that her lawyer would ask her a question such as “do you want to see your dad?” and she would answer a clear “no” but that the lawyer would keep rephrasing and asking again, such as “if such and such events happened, would you like to see your dad?” and she kept answering no. She said that the lawyer kept rephrasing what she said and never accepted her answer. She felt that no lawyer paid attention to what she had to say and that she had no voice. One youth said “why should a one line e-mail cost one hundred dollars to my mother?” Another youth commented on the wait time in court. She thought that the court system did not work and should be completely redesigned.[205]

The legal system provides specific representation for children through the Office of the Children’s Lawyer (OCL) in the Ministry of the Attorney General which delivers programs in the administration of justice on behalf of children with respect to their personal and property rights, representing children in various areas of law including child custody and access disputes, child protection proceedings and civil litigation. Lawyers may be OCL employees or members of the OCL panel, a group of private bar lawyers across the province who provide services on contract to the OCL. The OCL also employs (either directly or through empanelment) clinical investigators, mainly social workers, who prepare reports for the court in custody/access proceedings and who may assist lawyers representing children in such matters. In its response to the Interim Report, the Ministry of the Attorney General advised that at any given time, the OCL provides services to approximately 20,000 children throughout Ontario. In 2010-2011, the OCL became involved in 2,650 new custody and access cases. Almost all of these cases would fit the definition of “high conflict”.

Where there is a dispute before the court about child custody or access matters, the court may request the appointment of a Children’s Lawyer under the Courts of Justice Act. This happens when the court requires independent information and representation about the interests, needs and wishes of the child who is the subject of the proceedings.[206] The involvement of the OCL is limited to cases where a court application has already been started. In numerous instances, parents are unrepresented and the Children’s Lawyer is the only counsel in the matter and in approximately 25 per cent of custody and access referrals none of the parties is represented.[207] Once the Children’s Lawyer has completed his or her interviews or the clinical investigator has completed his or her investigation, the Children’s Lawyer may invite the parties to a disclosure meeting. The OCL will explain its position at this meeting and will attempt to foster a settlement between the parties.

Although we do not specifically address how the system could be improved to respond to the experiences of children, it should be understood that services for families must include services for children and that all efforts must be made to reduce the confusion, hurt and anger that they often feel. To some extent, the better the system works for their parents, the more likely the parents will be able to give a high priority to their children’s concerns.

 


C.      Assessing the Current System against the Benchmarks

For convenience, we include the Benchmarks we discussed in the Introduction to Parts One and Two.

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.

As we have said, there have been many reforms to the family law system in the past few years. We note the considerable amount of information available on the internet from various sources, including the Ministry of the Attorney General, Legal Aid Ontario, the Law Society of Upper Canada, CLEO and community organizations, some general, and some directed at particular communities. Many sites have special information relating to domestic violence. The difficulty at the entry point stage is the amount and complexity of the information, as well as where people at the earliest stages of their thinking about doing something about their family problems might find it. Much of the information rapidly becomes more “technical” than people with low levels of literacy or familiarity with English or French are likely to understand.

Determining next steps in a dispute may not be easy, since it would be difficult for many people to apply the information to their own situation to allow them to determine the nature of their family problem(s) in a timely and effective way. The increasing emphasis on online information, while not surprising and helpful for many people, may be a barrier for those people who for whatever reason do not yet have easy access to the internet.[208]

Many of the reforms, such as FLICs and the MIP, have been designed to align with the courts. Setting aside whether this is a problem for people who are unfamiliar with the courts or who wish to avoid the courts, the in person interaction provided remains limited. Individuals who cannot afford lawyers will have a difficult time moving beyond their initial interaction with information provision to decide how to address their family problems – or to decide whether the problems within the family are actually legal problems. This will complicate the move from the entry points to resolution, whether in the courts or elsewhere. Furthermore, despite recent court reforms, the process takes time and is difficult for those without representation; the different aspects of the system need to be linked to the entry points in a way that responds to the needs of litigants.

We also note that while there are many organizations providing assistance of various kinds generally or to members of particular communities, these may or may not be linked to the family justice system in a way that enables individuals to assess their problems holistically or comprehensively.

Thus although the reforms have contributed to benchmarks related to providing information and simplifying the system, there is more that can be done. In the next section, we describe the continuing gaps in greater detail, beginning with the way Ontario’s pluralist character affects people’s interaction with the family justice system.

 

 

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