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.
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. 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). 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).
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. 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. 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 and Canada Benefits has a section on Divorce or Separation with an application kit.
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. 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. 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”. 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 and Family Law Education for Women (FLEW) 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. 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. 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) and the Mandatory Information Program (MIP), 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.”
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. 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”. The Mamo Report did recommend that the FLICs should be “the ess