The preceding discussion illustrates that stakeholders in the family justice system, both large and small, have devoted considerable time and resources to make the family justice system more accessible, effective and affordable for families facing relationship breakdown. A plethora of services have developed to assist families, as different stakeholders in the justice system with diverse mandates have attempted to address the problems within their jurisdiction or develop services to assist their constituents. There have been a number of important developments to help families over the past two or three years in particular. We endorse the comments of Chief Justice Smith of the Superior Court of Justice in response to our Interim Report. The Chief Justice emphasized the importance and success of these initiatives so far, stressing the significance of the reforms in difficult economic times as well as the “dedication and commitment of the [Ministry of the Attorney General] staff”, “the tireless support from the judiciary” and the “selfless volunteerism of many members of the Bar”.
There is no doubt that the willingness to initiate and implement the reforms of recent years has been a necessary precondition to meeting the challenges in the family legal system. Notwithstanding these promising reforms, however, there remain a number of issues still to be addressed. In particular, the most significant barriers to accessing the family justice system remain the lack of a systematic approach to diversity which the reforms, including the most current, do not explicitly address; lack of a coherent approach to provision of information; the lack of affordable assistance; and a need for additional ways to address the intersection of family legal problems and non-legal problems related to family breakdown. We discuss ways to improve these particular aspects of the system in Part Two of this Report.
In this Chapter, we provide a portrait of contemporary Ontario society and discuss the importance of establishing the goal of inclusiveness as an overriding value to be considered in making more specific changes and in co-ordinating the current disparate initiatives. In thinking about the particular characteristics we discuss below, it is important to recognize that people do not fit into one “category” and that they cannot be defined by one particular characteristic; rather, our identities are fluid and different characteristics may be more predominant than others, depending on context. Furthermore, inclusivity does not mean forcing people into straightjackets of identity, but providing the conditions necessary for implementing Ontario’s commitment to pluralism.
B. Ontario’s Pluralism and Changing Circumstances
We recognize that the Ontario family legal system and the legal system generally have developed programs and approaches intended to respond to and include the province’s various populations. For example, the Ministry of the Attorney General (MAG) has developed family law information designed for Aboriginal persons. Community Legal Education Ontario (CLEO) and others have provided general or family law information in several languages. Ontario’s legal system is “bijural” and is expected to provide services in French, as well as English, and there are efforts to improve access to these services. More generally, the courts have responded to the needs of persons with disabilities.
These attempts to be inclusive have not yet been fully realized. To cite just two very different examples, the Family Law Information Centres (FLICs) appear to have uneven capacity to provide French language services (similarly, we were advised in the consultations to our project on the modernization of the Provincial Offences Act that French defendants were not always able to obtain a trial in the French language in a timely way); and family law information provided online is not easy to access for persons living in areas of the province lacking high speed internet or by persons with low literacy levels. Nevertheless, these initiatives reflect recognition of a need. Furthermore, the province has taken steps towards ensuring that its laws and policies do respond to diversity needs. As we discuss further below, the Ontario Public Service (OPS) has developed a lens for assessing laws and policy against different types of characteristics.
Our point is not that the system and relevant actors have not in various ways responded to Ontario’s pluralism and that inclusivity is an ongoing project, but that there needs to be a systemic approach. We are also aware that the best of intentions are faced with fiscal challenges. In both our frameworks relating to older adults and persons with disabilities, respectively, we acknowledge the principle of “progressive realization”: not everything can be done at once, but it is important to know the goals, the gaps between aspiration and realization and the actions required to achieve the goals. The same thing might be said about the family law system. Where resources are limited, implementing new systems and approaches may occur over time when resources are available or when it has been determined that resources supporting outmoded approaches can be redistributed to programs that will improve the system. It is also important, however, to identify the end goals and to take progressive steps to achieve them.
In the next section, we explore some of the ways in which Ontario society and family relationships have been transformed. We then discuss specific issues that affect access to justice as people consider entering or actually enter the system, including the relevance of diversity to these issues. We close Chapter III of Part One with reiteration of the significance of inclusivity to advancing substantive equality, including with respect to entry points to the family justice system.
2. Painting a Portrait
The diversity among Ontario families reflects the diversity in Ontario’s population generally. Among other developments, for example, changes in immigration patterns have led to changes in the ethnic and religious make-up of the province. While women in Canada have increasingly gained more social and economic rights over the past two or three decades, the beliefs of some groups may appear to challenge the commitment to equality between men and women that has been recognized in the Canadian Charter of Rights and Freedoms and the Ontario Human Rights Code. Fathers are increasingly engaged with the upbringing of their children and expect to be included in post-separation relationships with their children. While it may have seemed a considerable time in coming, the legal recognition of same-sex couples (whether the right to support, custody of or access to children or marriage) has accompanied a widespread acceptance of homosexuality, a form of sexuality that was once illegal. There is now recognition of a broader understanding of gender identity and expression. Public policy is now grounded in recognition that a society modeled on an assumption of “able-bodiedness” must be refashioned to incorporate the needs of persons with different types and severity of disabilities. The “aging” of the population has alerted us to the reality that access to the legal system and the problems facing them may not be the same for older adults as for younger adults. The greater sophistication of young people in some respects and the breaking down of time and space barriers that technology has transformed in only a short period of time have in complex ways changed the relationship between parents and children. And these and other developments have had ramifications in how we view communal obligations and the challenges we face at the societal level.
For the family justice system to be effective and responsive to the needs of families, it must appreciate how families are not only similar, but also how they are different. Systems, processes and methods that are premised on a primarily homogenous family structure and background require rethinking in a province which has committed to diversity. The system must respond to problems that not only cut across families, but also to problems that arise from diverse family situations. This requires understanding how families in Ontario have changed over the past two or three decades. It also requires recognizing that this is not a static situation, that newcomers’ relationship to Ontario society evolves, that second generation individuals may view things far differently from their parents and that social conditions can have an impact on this changing dynamic. We are particularly cognizant in this Report of several dimensions of diversity which impact on the ability to access services.
Some examples of “pluralism” have existed for as long as Ontario has existed, as well as before. Indeed, First Nations were heterogeneous, with “diversity” becoming more pronounced with the first contact with Europeans. The issues we refer to here as they relate to First Nations have arisen in some ways from the clash between pre-colonial existence and non-aboriginal society as it emerged in Canada, or the lack of symmetry between the two cultures and worldviews. Persons with disabilities have lived in society forever, although their circumstances have changed considerably over time and the types of disabilities that government and society at large have acknowledged should be addressed have increased. In other cases, such as the relationship between men and women, relationships have shifted significantly, while the impacts have not been fully addressed. In yet another example, while same-sex relationships have long existed in fact, the legally sanctioned structure of the family has changed with the recognition of same-sex marriage. Certainly one of the biggest changes has been in the ethnic, cultural and religious composition of the province, particularly its urban areas, which has permeated not only the justice system, but also the economy, politics and social relations.
We cannot exhaustively describe the very many ways in which Ontario society has changed, or the ways in which on-going circumstances are being approached differently, particularly over the past thirty or so years, nor is what we do describe particularly startling or new. Yet we consider it important to provide support for our view that a systemic approach to inclusivity when improving access to the family legal system is critical. We therefore discuss examples of the diverse circumstances which we believe need to be taken into account in thinking about how to fashion entry points. The principle we advance is that the design of the system needs to be inclusive and that it needs to be flexible in recognizing that not all individuals who appear to be characterized in a particular way share the same views and experiences. The challenge is always to avoid “slotting” people into certain categories while at the same time remaining open to different needs and expectations.
Most of Ontario’s 3.6 million families consist of married couples, with a far smaller number living in common law relationships. The proportion of lone-parent families is about 16 per cent of families. Male lone-parent families experienced higher growth over the period between 2006 and 2011 than did female lone-parent families, although there are still far more female lone-parent families. At the same time, there are some differences in family structure in this regard among ethno-cultural groups which we discuss below.
Not surprisingly, there was a dramatic increase in the number of same-sex legal marriages between 2006 and 2011, following the federal establishment of the