Part I, Section III: Inclusivity and Access to Justice

Part I, Section III: Inclusivity and Access to Justice2017-03-03T18:33:20+00:00

A.             Introduction

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

1.      Introduction 

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);[209] 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.[210] 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[211] and the Ontario Human Rights Code.[212] 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.[213] 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.[214] 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.[215] 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 legal right of same sex partners to marry in 2005.[216] Although the patterns of opposite-sex and same-sex marriages are similar across the country, same-sex couples tend to be clustered in large cities.[217] Of interest is that the proportion living in large cities is slightly lower than was the case in 2006, suggesting that same-sex marriage may be becoming more common in smaller centres.

Consistent with the aging of the population, the number of couples with children living at home slightly decreased in 2011.[218] Same-sex couples are less likely to have children at home than are opposite-sex couples and more female same-sex couples are likely to have children at home than are male same-sex couples.[219] We can expect this situation to change in the future given the change in the definition of marriage and increasing acceptance of same-sex relationships.[220]

The situation of families has been complicated not only by reproductive technologies and adoption, through which children may have ties with non-biological parents and little or no contact with biological parents, [221] but by remarriages after a divorce. In 2011, Statistics Canada for the first time was able to distinguish between families in which the children were the biological or adopted children of their parents (these are termed “intact families”) and “step families”.[222] In Canada in 2011, over 87 per cent of families with children were “intact” families, while there were over 10 per cent of “step families”.[223] Post-separation custody and access arrangements for children may be complicated by their membership in more than one family; and the increased difficulties resulting from the breakdown of a second family may well exacerbate the usual distress children may feel at the time of the dissolution of their family.

The vast majority of children 14 and under lived in a family with their parents, with the remainder living with other relatives or non-relatives.[224] About 19 per cent of children lived with lone parents, a slight increase from 2011; of these, over 82 per cent lived with female lone parents.[225] There has been a small increase in the number of children living in households with grandparents, although most of them are living with their parent(s), as well.[226] This may have ramifications for more grandparents applying for custody or access in the case of family breakup. A Bill to strengthen grandparents’ rights to form and continue relationships with their grandchildren was introduced in the Ontario legislature in April 2012.[227] While the tendency for several generations to live under one roof may have declined in certain cultures, it may be more significant among other cultures in which it is not unusual for grandmothers and sometimes other female relatives to assist with the care of the family.[228]

Within the family, the role of women has undergone a profound transformation in part resulting from women’s increased economic independence and more generally their greater independence in law and socially, as well as an evolution in expectations about men’s role. In part, it also reflects an economy and increased expectations about what families should provide that requires two income earners in the family. Notably, men are no longer the main income generators within a family.[229] However, women still earn less than men, however measured, although the gap is smallest with younger women.[230] The increased economic participation of women, among other factors, has contributed to a trend that couples have fewer children and at a later age.[231]

We appear to be in a significant transition period in the relationship between female and male partners, as more fathers play a significant role with their children, as couples decide whether one parent should stay home with the children on factors other than status as the mother and as fewer couples assume that it will be the mother who takes time off work when children are sick.[232] Nevertheless, despite these shifts, there remain significant differences in gender roles within families. For example, among part-time workers, 32 per cent of women work part-time in order to accommodate child care responsibilities, while only 6 per cent of men work part-time for this reason.[233] In 2010, Canadian women spent an average total of 50 hours per week caring for household children, double that spent by men.[234] Although both men and women report caring for seniors, women spend more time doing so.[235] While relations within the family may have begun to change, employers are less likely to allow flexible work hours than was the case in 2001.[236] Nevertheless, women’s increased capacity for economic independence and men’s desire to engage with their children are just two aspects of the changing relationship that have implications for resolving custody and access and spousal support obligations. One matter that may be of interest is whether these changing circumstances have affected how men and women negotiate family issues differently.

While the observations in the above paragraph may be generally the case, there are many differences among women. Factors such as sexuality, ethnicity, Aboriginality, economic status, religion or culture, ability, age, place of residence (urban or rural), among others, will have an effect on the lives of women, as they do on the lives of men.[237] We provide a few examples that might be relevant to family relationships and breakdown.

Aboriginal women are less likely to be in married relationships than are non-Aboriginal women.[238] They are also more likely to be lone parents and to have more children at a younger age.[239] However, there is a greater likelihood that more people, including Elders, are involved in raising a child.[240] Aboriginal women were less likely to have a university degree than were non-Aboriginal women (but more likely than Aboriginal men),[241] less likely to be employed than were non-Aboriginal women, as well as than Aboriginal men who lived off-reserve[242] [243] and more likely to live in low income than either non-Aboriginal women or Aboriginal men.[244]

There has been a dramatic shift in the home countries of immigrants generally over the past two or three decades and this is true of women. Female immigrants now come from over 220 countries and the proportions coming from Europe and from Asia and the Middle East has reversed since 1971.[245] More female (as well as male) immigrants are likely to be members of visible minority communities than was the case in the past, as a result of the change in “source countries”. Thus “[i]n 2006, visible minorities accounted for 55% of the total female immigrant population, up from 22% in 1981”.[246]

Women who are immigrants are more likely to be married than are Canadian-born women.[247] More “visible minority” women lived in married relationships than non-visible minority women.[248] Visible minority women are also more likely to have a university degree than are non-visible minority women.[249] Immigrant women generally are more likely to have a university degree than Canadian-born women, yet although a very high proportion of immigrant women work for pay (some 90 per cent of immigrant women in the core working ages of 25 to 54 were wage earners), the levels and income are lower than for Canadian-born women; the gap is less for immigrant women who have been in Canada for longer periods, however. Women have been more likely to enter Canada under the Family Class category or as the spouse or dependent of an Economic Class principal immigrant than as an Economic Class immigrant and this can have consequences for language or employment skills.[250]

As we previously noted, while the lives of women may differ depending on a number of factors, the lives of many women are different from those of men across most communities, whether economically, socially or in other respects. For example, women are more likely to be subject to domestic violence than are men, and to be subject to more serious forms of violence. For Aboriginal women, the reported rate of spousal violence in 2009 was 12 per cent, compared to 6 per cent for non-Aboriginal women.[251] Aboriginal women also report high rates of financial or emotional abuse, but in this case similar to rates reported by Aboriginal men.[252]

In 2006, Aboriginal people constituted 2 per cent of Ontario’s population. The 2006 Census revealed that the Aboriginal population is much younger than that of the non-Aboriginal population, with larger percentages of young children compared to the non-Aboriginal population. Although over half of Canadian Aboriginal children 14 and under lived with both parents, Aboriginal children were more likely to live in lone-parent households (most often with the mother or a grandparent). They were also more likely to live in multiple family households. Sixty per cent of Aboriginal people in Canada lived off-reserve, with approximately 20 per cent living in rural areas.[253] Aboriginal Affairs and Northern Development Canada reports that “[o]ne in four Ontario First Nations is a small, remote community, accessible only by air year round, or by ice road in the winter. Ontario has more remote First Nations than any other region in Canada”.[254] This has implications for how information and services are delivered to the members of these communities.

For Aboriginal people in Ontario the family encompasses an extended network of grandparents, aunts, uncles and cousins. This element of Aboriginal cultural identity is highly relevant to family law issues such as custody and access, and it underlines the necessity for cultural sensitivity within the family justice system.

Aboriginal people are overrepresented in Ontario’s family law system as well as in the criminal justice system.[255] Aboriginal communities face unique and complex barriers to accessing justice. One significant barrier is the distrust that many Aboriginal people experience towards the justice system and law enforcement authorities reflecting different conceptions of justice, historical and ongoing discrimination in court and language barriers.[256]

Building on our Competencies did not provide information about the literacy rates of Aboriginal populations in Ontario; however, it states that “[t]he prose literacy performance of the Aboriginal populations surveyed is lower than that of the total Canadian population”, with 60 per cent of the urban Aboriginal populations in both Manitoba and Saskatchewan scoring below Level 3 on the prose literacy scale (compared to 48 per cent of the Canadian population as a whole).[257] Although we do not have figures about literacy for Ontario, we note that in Ontario, 38 per cent of Aboriginal peoples have not completed high school and about 38 per cent have some type of post-secondary education (compared to 51 per cent of the non-Aboriginal population).[258]

For status Indians living on reserves, family law is legislatively more complicated than for most people living in Canada. For example, the matrimonial home on a reserve is not subject to provincial legislation, although legislation before Parliament would apply provincial legislation in this regard to reserves.[259] First Nations that are covered by the First Nations Land Management Act are required to create a regime relating to First Nations land in the event of marriage breakdown.[260]

In developing its Aboriginal Strategy, Legal Aid Ontario (LAO) heard about four barriers in particular that Aboriginal people experience in accessing justice: 1) administrative and operational problems (including geographic barriers as a result of living in remote communities, lack of access to computers and telephones, and language barriers); 2) the lack of cultural competency among lawyers and LAO staff; 3) the lack of public legal education and information accessible to Aboriginal communities and service providers; and 4) insufficient outreach to and too few networking opportunities among Aboriginal communities and organizations.[261] Across many of these categories, there is a lack of culturally-specific education materials available to the public, especially materials recognizing historical injustices experienced by Aboriginal people.[262] LAO has taken steps each year since to advance its Aboriginal strategy by providing Aboriginal competency training, seeking to hire Aboriginal staff and developing “a public legal education plan focusing on Aboriginal child protection, to be delivered in a culturally appropriate format, via print, audio/radio and video”, among other initiatives.[263]

Changes in immigration patterns have led to changes in the ethnic and religious make-up of Ontario families, particularly in larger urban centres. About 67 per cent of Canada’s population growth now occurs through immigration.[264] In the 2006 Census, foreign-born Canadians reported more than 200 countries of origin. Ontario was home to more than 3 million first generation immigrants representing almost 30 per cent of Ontario’s population. [265] In 2009 and 2010, just over 42 per cent of new Canadian immigrants (118,116 people) settled in Ontario, the largest percentage of all the provinces.[266] [267] The bulk of Ontario immigrants (80 per cent) settle in the Greater Toronto Area.[268] Although the majority of these immigrants live in Toronto, they are increasingly settling in suburban communities such as Mississauga and Brampton. Other urban communities such as Ottawa, Hamilton and London also attract increasing numbers of immigrants.[269]

In 2006, over 20 per cent of Ontario’s residents were racialized persons.[270] In Toronto, approximately 43 per cent of residents were racialized.[271] While the rates in specific communities may vary, racialized people in Toronto are much more likely to live in poverty than members of other groups.[272] This means that the availability of legal aid or other means of accessing legal representation has an even greater impact for members of this group and for others (such as single parent families, individuals over 65 and Aboriginal persons) than others.

The influx of newcomers from Asia and the Middle East has been accompanied by an increase in persons identifying with religions such as Islam, Hinduism, Sikhism and Buddhism, although the Protestant and Roman Catholic religions remain the predominant religions in Ontario.[273] As far as degree of “religiosity”, one study found that young people are less likely to be religious than are older people and “[m]en are also much more likely to have low religiosity than women”. Furthermore, the study found that 41 per cent “of the immigrants who arrived in Canada between 1982 and 2001 have a high degree of religiosity, compared with 26 per cent of persons born in Canada”. [274] Where religion plays a significant role in the family or for only one partner, it may help to define relations between the couple and expectations about family breakdown, custody and access and possibly the treatment of one or the other partner by their community.

The increased diversity of immigrants and of cultural norms and values also affects access to the family legal system. For our purposes, there are two important issues: the extent to which immigrants are unfamiliar with the Canadian justice system generally and more particularly with the family justice system (something they may share, but for different reasons, with Canadian born individuals) or the extent to which they face language and cultural barriers that complicate interaction with the system. Some members of racialized communities (immigrants or born in Canada)[275] may have developed a distrust of the system, sometimes from experiences in their “home” country, but also possibly from previous experiences with the Canadian system, that make them reluctant to access services connected with the court system, for example.[276]

Immigrants face a number of challenges in accessing the justice system, in particular language barriers. According to the 2006 Census, 1.8 million Ontarians speak a language other than English or French most often at home and nearly 270,000 Ontarians have no knowledge of either official language.[277] Between the 2001 and 2006 censuses, the number of people in Ontario with no knowledge of either official language increased by nearly 34,000 and the number who spoke a non-official language most often at home rose by nearly 275,000, although this does not mean that they lack facility in English or French. The 2011 Census showed that in Toronto, just over 15 per cent of persons spoke only a language other than English or French.[278]

Cohl and Thomson’s 2008 Report, Connecting Across Language and Distance, estimates that up to 500,000 Ontarians may need an interpreter to access legal information. The vast majority of immigrants with language challenges live in urban centres such as Toronto, indicating that linguistic access to justice is primarily an urban issue with certain exceptions such as temporary migrant workers. [279] [280] It is worth noting that it is not only immigrants for whom English (or French) may not be a first language. Although the mother tongue of most Aboriginal women in 2006 was English, with far fewer identifying French, the mother tongue of almost a fifth was an Aboriginal language.[281]

In this regard, it has been suggested that although many people describe the central barriers to accessing the justice system as high costs and procedural delays, another significant source of barriers may be the lack of a common language and dialogue about the meaning of justice.[282] In the family system, this may take the form of different understandings of what an “effective family” is or of the appropriate relationships among family members are. Out of the diversity of family life a more pragmatic legal concept of “family” or “family life” has developed in family law in developed countries,[283] based on the factual situation of persons having formed close ties, economically and personally.[284] Where children are involved, this includes the assumed emotional ties between (biological and non-biological) parents and child, or close relatives such as grandparents and a child.[285] In practice this can raise complex issues for families recently emigrated from countries with these familial characteristics.[286]

The lack of a shared language across diverse communities may impede immigrant or racialized people’s ability to obtain information about their legal options that is accessible and applicable to their lives. In “Cultural Fluency for Family Law Lawyers”, Fareen Jamal discusses the impact of culture differences in family law matters. While stressing that an individual’s behavior cannot be predicted solely on cultural background or affiliation, she underscores the utility of understanding cultural aspects when understanding behaviour in a pluralist context, particularly when, as she notes, diverse individuals are accessing family justice services that “have historically been designed to cater to middle-class North-American Caucasian families with a European heritage”.[287] MacFarlane notes, “[law’s] claim to universalism means that law has few if any mechanisms for identifying personal cultural norms or cultural misunderstandings between disputants and even fewer for addressing these in process or in outcomes”.[288]

Building on our Competencies, which discusses literacy levels, does not distinguish literacy rates for immigrants based on province, but reports that “[s]ixty percent of recent and established immigrants, compared to 37 percent of the Canadian-born population, are at Levels 1 and 2 [the lowest levels] in prose literacy”. Of note is that “[t]hirty-four percent of recent female immigrants are at Level 1 – compared to nine percent for Canadian-born females”.[289] Immigrants whose mother tongue is neither English nor French have lower prose literacy rates; however, Building on our Competencies cautions that one cannot generalize from these rates to rates in immigrants’ mother tongues.[290]

Other barriers also prevent immigrants from accessing the justice system. Many immigrants come from countries with very different legal systems and they may be unfamiliar with basic rights guaranteed under the Canadian system as well as the social services that are available to them. A combination of language barriers, lack of computer literacy, low income, isolation and discrimination may prevent them from learning about services and supports.[291] Some immigrants are reluctant to access services that are not sensitive to their culture, value systems and faith traditions.[292]

Obtaining access to justice in the family system can be difficult for persons with certain kinds of disabilities or with severe disabilities. Approximately 15 per cent of Ontario’s population lives with some kind of disability and in some cases with multiple disabilities.[293] Women are more likely to report living with a disability and with a more severe disability than are men, although they are also more likely to be employed than are men.[294] There is a higher rate of disability among Aboriginal persons than other segments of the population and Aboriginal persons with disabilities have higher rates of low income than other Aboriginal persons or non-Aboriginal persons with disabilities.[295] Canadians living with disabilities earn lower incomes on average than do Canadians without disabilities.[296] Type and severity of disability also affects the likelihood of living in low income or of living on social assistance.

Persons with disabilities often experience barriers to accessing justice that are unique to their particular disability. For example, someone with a mobility disability may not be able to attend a Mandatory Information Program (MIP) session held in an inaccessible location, while someone with a particular type of learning disability might have trouble accessing the MIP online. A person with a cognitive disability may be precluded from making decisions about taking legal action where he or she is found to lack capacity.[297] Each individual’s specific experience of disability must be considered when evaluating access to justice in the family justice system.

Many persons with disabilities cannot afford to hire a lawyer and, unless legal aid is available, they may be less inclined to pursue a legal claim.[298] Also, persons with disabilities are often dependent on family members for support. This dependency may discourage them from making a complaint or taking legal action against these caregivers.[299]

Other barriers to justice include resource limitations and the lack of disability-related accommodations for services and programs.[300] Although innovations in technology have improved access to the justice system (e.g., wireless communications systems that permit people who are hard of hearing to use earphones to hear proceedings), a lack of resources precludes some people from accessing these tools.[301]

Communication barriers remain a significant problem for persons with disabilities, both in terms of accessible information and in-person communication with legal professionals. In 2006, a nation-wide study found that none of the materials available to the public in the courthouse racks, legal aid offices, and legal education and information centres they surveyed were available in large print or in audio format.[302] Since then, however, Ontario public agencies have been engaged in meeting the requirements of the Accessibility for Ontarians with Disabilities Act which is intended to reduce or remove barriers for persons with disabilities and to require pro-active measures by most organizations by 2025 or in some instances earlier.[303] The Ministry of the Attorney General’s website explains how people can request and receive accommodations such as assistive listening devices, scheduling of proceedings, as well as others.[304] Frustration, fear and a lack of understanding of legal processes may also place additional barriers on an individual’s ability to communicate effectively with others in the justice system.[305] Individuals in the legal system may have difficulty understanding persons with certain kinds of communication disabilities.[306]

Learning disabilities may make learning to read difficult and thus are also associated with low literacy, particularly if the learning disability is not identified early.[307] Other forms of disability may also be linked to low literacy skills. For example, we were told that for many Deaf persons, English or French is a second language and interpreters are required for written documents.[308]

Finally, persons with disabilities are frequently subject to ableist stereotypes that increase barriers to justice and push them towards the social and economic margins of society. Perhaps especially where an individual’s disability is not visible (including some types of physical, mental and cognitive disabilities), a lack of awareness and sensitivity may be observed among legal professionals who, like many of us, are not always familiar with the ramifications of non-visible disabilities.[309]

A poignant example of the gap between the needs of a group of disabled individuals and the delivery of services was brought to our attention by The Canadian Hearing Society in response to our Interim Report in this project:

While the report is working on improvement of the family law system there are still systemic barriers faced by consumers that are Deaf or Hard of Hearing that require services in ASL.  For these consumers use of entry points such as the 20 minute phone conversation are not accessible without qualified professional interpreters being used by the legal services themselves.  Barriers are created if the burden of equitable access is placed on the consumer who uses other languages to communicate.  Most lawyers, duty counsels and other parts of the legal system are unaware of how to provide services that are culturally and linguistically appropriate for ASL users.  And it seems that once the problems have been resolved in one region, the solutions do not get shared with other regions so each community means reinventing the wheel and educating staff, lawyers etc. about equitable access to ensure good information and quality of service. 

Ontario’s population is aging.[310] Family issues such as separation and divorce affect individuals regardless of age.  However, the increased number of older Ontarians has implications for some family legal issues such as parental abuse by grown children, the obligations of grown children towards elderly parents and the rights of grandparents to see their grandchildren. Certain factors associated with aging may disadvantage some older adults in accessing the justice system. Many older adults experience decreased mobility as they age and require supports (including transportation and enhancements to physical accessibility) to access the justice system. Vulnerable older adults are often dependent on family members or other caregivers for their physical, emotional and financial wellbeing. They may be unwilling to pursue family law claims against people with whom they want or need to maintain ongoing relationships. Older adults may also be reluctant to report abuse if they perceive that police are insensitive or disrespectful to them. [311] Building on Our Competencies showed that prose literacy decreased with age and that for the largest proportion of persons over 65 was at Level 1, making it difficult to use legal information.[312] The delivery of information online may also disadvantage those older adults who have not acquired computer skills. Older adults who have had to give up their driver’s licence may find transportation to larger centres hard to find if they live in rural areas.

Older adults also face systemic barriers to access to justice. These include ageist or paternalistic attitudes of people implementing the law, lack of sufficient training and information on legal requirements for those implementing the law, lack of oversight mechanisms for legal rights and protections, lack of meaningful remedies when rights have been violated, over-reliance on complaint-based systems and the failure to acknowledge and accommodate older adults’ needs in establishing and delivering services.[313] A serious problem exists in the complexity of the laws dealing with older adults; only a small minority of lawyers has expertise in these issues and very few plain language materials about seniors’ legal rights are currently available to the public.[314]

In addition to the diversity of its population, Ontario must also contend with the diversity of its geography.  Ontario has reversed the proportion of its population living in rural and urban areas over the past 150 years. In 1851, 86 per cent of the population lived in rural areas; by 2006, 85 per cent lived in urban centres.[315] According to Statistics Canada, in 2011, the city metropolitan area (CMA) populations of Ontario’s urban areas ranged from nearly 119,000 people in Peterborough to over 5.5 million in Toronto.[316] Notwithstanding this trend toward urbanization, legal services must be delivered across the province, including more remote locations. Distance has been identified as the biggest barrier to obtaining legal information and services. For example, broadband access is not available in certain parts of the province.[317]

One of the most significant and perhaps most widely acknowledged forms of diversity in relation to accessing the legal system, including the family system, is economic status. Legal aid and other ways of delivering legal services at lower cost are responses to the inability of people to access the system effectively because they cannot afford legal representation. However, the inaccessibility of the legal system on economic grounds remains a serious challenge, not only in regard to legal representation, but in other ways. One’s hours of work or flexibility in obtaining “time off” may make it more difficult to attend the MIP in some areas in person, for example, or to attend a mediation or court. The need to pay for childcare in similar situations may also be a difficulty.

Nor is “economic status” all about poverty, since, as we discuss elsewhere in this Report, the middle-class face significant economic barriers in accessing the system since they cannot afford or easily afford legal services and are not eligible for legal aid. The financial situation of each partner to a dispute can affect the scope of his or her discretion to settle disputes and life after separation. One lawyer wrote to us about her middle-class clients as follows in response to our Interim Report:

Many of my clients are middle class. They have no significant savings so they live off debt or have to sell their homes, borrow money etc. They are often living pay cheque to pay cheque before the relationship breakdown. Things generally do not improve financially after the breakdown. Their children are left during this difficult time in their lives with having parents who are additionally stressed by the judicial system and the lack of a speedy and effective remedy.

Although low economic status cuts across various groups, as we have indicated in this section previously, some groups are more likely to live in low-income or have lower financial means at their discretion, including Aboriginal persons, persons with disabilities, women, especially single parents, and some ethnic groups, and persons with combinations of these characteristics may face even greater difficulties economically. As the Ontario Association of Interval and Transition Houses (OAITH) points out in its response to our Interim Report,

…[C]onsidering how poverty impedes access to justice without accounting for how some groups face disproportionate levels of poverty exacerbated by discrimination based on disability or race, will also fail to adequately account for the lived realities of many Ontarians that impair their access to resources and options others take for granted.

Ontario is home to a rich and diverse population including many vulnerable individuals.  Some individuals have intersecting vulnerabilities and all individuals have varying experiences and attitudes. Participants in the system have provided services that recognize the access challenges posed by diversity. Although there are efforts to provide material in different languages or to develop information specifically for Aboriginal communities, for example, the reforms do not appear to address in a systemic way the challenges posed by diversity. For those in remote communities, for those whose language of communication is other than English or French, for women who have small children requiring care, for persons with disabilities and for immigrants from countries with a dysfunctional and authoritarian government, the court house may remain as intimidating and inaccessible to them as it was before the reforms, albeit for different reasons. Nor do the reforms, focused primarily on the courts, address the needs of many individuals who need information and access to help before considering going to court. As we have pointed out in Chapter II of this Part, while there is a great deal of information available offered by many different entities, much of it is difficult to navigate or understand, especially if people do not have help.

The challenge for Ontario’s family justice system is to ensure services respond to this diversity to improve access to justice for all Ontarians. Policy makers must have a nuanced understanding of the different makeup of Ontario families and the differing roles within the family in order to provide service that is responsive to the needs of users of the system. This is not to say that family justice stakeholders have not developed materials and services with a view to diversity.[318] Rather a continued and even increased awareness of the challenges posed by delivering services to a diverse population – and the changing dynamic of that diversity – must be a focal point of policy and program development and of service delivery.

 

3.       The Seeds of an Inclusive Family Law System

As one commentator has observed,

…[W]hile we can’t know all there is to know about all of the different people and circumstances with whom and with which we interact, we do need to be cognizant of the existence of those other realities and circumstances.  We must therefore develop the sensibilities that allow us to recognize that there are other realities than our own that may be influencing a situation or context.

To do this requires that we continually reflect on our assumptions and taken for granted conclusions.  Our histories of inclusion and exclusion in society require that we must recognize when situations, systems and yes even our laws are not always equitable. It also means that sometimes we must take a differentiated approach to create equality of opportunity, or of access.  It means that although we may feel that we have heard enough about the issue of diversity and inclusion, we haven’t.[319]

Ontario is not unique in the world in facing the challenge of providing services to diverse groups of individuals. Many countries around the world are becoming culturally diverse and migrants are increasingly looking to the nation state for laws, policies and practices leading to increased political participation and official recognition of their language and religion. Accordingly, managing diversity and developing policies aimed at social inclusion has become a major focus in many nations. Australia, for example, has been faced with similar challenges in its family justice system. In February 2012, Australia’s Family Law Council released a report to the Attorney General entitled Improving The Family Law System for Clients from Culturally and Linguistically Diverse Backgrounds.[320] Although we do not say that the comparison is completely apt, it is worth noting that the Council identified “factors that operate in combination to impede the ability of people from culturally and linguistically diverse backgrounds to access the services of the family law system” that are similar to those that our research and consultations also have identified, including

a lack of knowledge about the law and a lack of awareness of available services, language and literacy barriers, cultural and religious barriers that inhibit help-seeking outside the community, negative perceptions of the courts and family relationships services, social isolation, a lack of collaboration between migrant services and the family law system, a fear of government agencies, a lack of culturally responsive services and bicultural personnel, legislative factors and cost and resource issues.[321]

In the Council’s consultations, it found that while there was evidence of collaboration between service providers and community members to address the needs of cultural and linguistic communities, its “examination of these issues suggests that a more systematic set of responses is warranted”.[322] Although the Council’s scope was limited to culturally and linguistically diverse populations, the authors reported that many service providers in the family law system advised that “many of the barriers that inhibit clients from culturally and linguistically diverse backgrounds from successfully engaging with the system similarly affect other clients from low socio-economic and disadvantaged backgrounds”.[323]

In Delivering Services in Multicultural Societies, Alexandre Marc argues that addressing diversity through public policy has a number of benefits, one of which is the reduction of the consequences of social exclusion in “prevent[ing] people from accessing services, employment, or justice”.[324] Marc explained that mental health researchers have defined the concept of “cultural competence” “as a set of congruent behaviours, attitudes and policies that come together in a system or agency or among professionals that enables systems, agencies and professionals to work effectively in cross-cultural situations”.[325] This is equally relevant for actors in the legal system and in collaboration between the legal system and other disciplines or regimes. Marc adds, “The concept of cultural competency goes beyond cultural awareness or sensitivity.  It represents the institutionalization of efforts to provide appropriate programs or policies for diverse populations”.[326] 

Jamal also underscored the importance of “cultural fluency” in the practice of family law:

Cultural fluency is particularly important for family law as it is often precisely within the parameters of the marital relationship that individuals are motivated to practice their normative culturally determined ethics. 

Family is a contentious and emotive subject. Controversies about “the family” touch deep emotional commitments that shape the social and political positions people take and their willingness to defend their position or to compromise. These commitments are culturally informed and raise debates about the kind of society we value and aspire to.
[327]

Although the above discussion relates specifically to the issue of cultural diversity, including membership in an Aboriginal community, it is equally important to identify and be responsive to the other dimensions of diversity described in the previous section, including age, disability, gender/sex, sexual orientation, literacy, geography and economic status. Thus one of the remaining challenges for the family justice system is to develop service delivery that addresses the various dimensions of diversity with the goal of increasing substantive inclusiveness. The provincial government is well aware of this issue and has taken important steps to ensuring that diversity is accounted for in the development of programs and services. In 2009, the provincial government launched the OPS diversity three year strategic plan.[328] In the 2011 OPS Diversity Annual Report, Toward Inclusion, the Diversity Office outlined the impetus for a diversity plan as follows:

The Ontario Public Service (OPS) provides programs, policies and services to 13 million people in one of the most diverse jurisdictions in the world.

Ontario has changed dramatically and projections show this change will continue well into the future as our population ages and we continue to attract newcomers from around the world. In 2009 the Diversity Office released the OPS Diversity Three-Year Strategic Plan, Driving Change From a Solid Foundation, which sought to integrate diversity, accessibility and inclusion into the core business of the OPS.[329]

Part of the OPS strategic plan was to develop a diversity and inclusion lens. The OPS Inclusion Lens is an online tool that identifies existing and potential barriers to inclusion when developing or reviewing policies, programs and services. It asks questions about diversity, accessibility and inclusion. In essence, the lens is an analytical framework along 17 dimensions of diversity for use by OPS staff in the course of their work including in the implementation of a program or service; full implementation is expected by 2016. According to a description prepared by the OPS Diversity Office:

The Lens ensures that government policies, programs and services are inclusive and responsive to the needs of all Ontarians. This is critically important for an OPS that delivers relevant and excellent public services. Inclusion and accessibility are a top priority for the Government of Ontario and the Lens is a key commitment of the OPS Diversity Three-Year Strategic Plan.[330]

The use of an analytical tool such as the Inclusion Lens is a way to critically evaluate programs and services from the perspective of diversity. We believe that any program or service which is meant to serve the public must be evaluated in this manner to ensure it is accessible to all Ontarians. The LCO has created two Frameworks that may be of value to government and quasi-public and private actors in reviewing existing or developing new laws, policies and practices, as appropriate; one is intended to promote consideration of the needs and experiences of older adults and the other the needs and experiences of persons with disabilities, both designed to advance substantive equality.[331]

One area in particular in which diversity has been recognized in provincial policy is that of domestic violence. For example, Ontario’s domestic violence action plan identifies as one component the transformation from a “mainstream” program to one that includes “[t]argeted approaches to meet diverse needs (francophone, aboriginal, ethnocultural/racial, people with disabilities, rural/farm/northern, seniors)”, including “[t]argeted initiatives for groups that are at increased risk of domestic violence or for whom access to supports is limited by language, geography, disability or culture”.[332]

Although there have been discrete efforts to be more inclusive, some of which we have referred to above, what appears to be lacking often is a systematic approach to diversity in the family sector. A systematic approach would, as do the OPS Diversity Lens and the two LCO Frameworks, identify characteristics which are relevant for (that is, affect) people’s interaction with the family legal system, a method for ensuring that these are taken into account in creating or reviewing the programs and services and anticipated timelines for implementation. As we said previously, implementing new services or programs or redesigning existing services or programs would follow the principle of progressive realization: when objectives or goals have been defined, it is possible to identify where gaps remain and fill them as resources become available.

In the next section, we discuss very briefly how diversity or inclusiveness has influenced our assessment of the early stages in the family system and how it stands above individual parts of the system.

 

C.      Inclusiveness as an Overriding Value: Advancing Substantive Equality

Inclusiveness is an overriding value rather than equivalent to the improving of a particular aspect of the system, such as increased access to legal representation. It is, nevertheless, advanced by improvements in these specific aspects and it in turn contributes to the development of substantive equality in Ontario society. Identifying “achieving substantive equality” as an overriding value in our two framework reports (on older adults and persons with disabilities, respectively), influenced how we developed the principles and their application that comprise the framework. It also influenced how we carried out those projects. The same is true of this Final Report in our family law project.

In this regard, although we concentrate below on identifying where the system can still benefit from reforms in specific ways (provision of information, access to legal advice and representation and responding to the relationship between legal and non-legal matters), it is important to note that there are some larger issues that cannot be ignored (and that are not unique to family law) that complicate how to respond to these more specific issues.

In presenting the “postcards” of diversity earlier, we do not suggest either that they are unique to the family context or that addressing them will necessarily resolve other aspects of people’s lives, although they may have some impact. Indeed, for some people the need to access the family system may never arise or arise in only a minor way. Yet this does not mean we should not seek to mitigate them where we can. Similarly, to the extent members of some communities have an uneasy relationship with the family legal system for one reason or another, this may extend to the legal system more generally. Where views about women’s role may run contrary to mainstream views, they likely affect not only expectations about family dissolution, but also about how women should behave in society at large. They need to be taken into account if we are to understand and improve the bigger picture and assess their relationship to fundamental Canadian values. Our task here, however, is to appreciate that the overriding value of inclusivity responds to the uneven distribution of disadvantage experienced by different groups in Ontario.

There are some challenges that transcend the experiences or needs of particular groups, but that may have consequences that vary depending on people’s characteristics or backgrounds. In these cases, there may need to be specific adaptations to more general responses. For example, in thinking about improving access to information, there are some general suggestions we can make about the need to make sources more comprehensive and to make it easier to navigate the maze of online information. In creating an information “hub”, however, we need to remember that literacy skills, for example, can affect access to online materials. Low literacy levels are not unique to particular groups and ways of addressing them can be helpful across the population, particularly those with low education levels. At the same time, Aboriginal persons, older adults and some immigrants are more likely to have lower literacy skills than others.

The suggestion has been made that programs designed and delivered by non-Aboriginals simply cannot bridge the cultural divide between the mainstream justice system and the unique world-view and needs of Aboriginal communities. Some culturally-specific legal services such as Aboriginal Legal Services of Toronto currently exist in Ontario.[333] In other parts of the system where services are provided to people regardless of their background, it may be desirable to place an emphasis on training Aboriginal service providers.[334]

There are other examples. People who have reached older age today tend to have lower levels of education and are less likely to be computer literate.[335] An individual whose first language is not English or French may have great difficulty deriving benefit from sitting in a Mandatory Information Program (MIP) session if they cannot bring their own “translator”, perhaps a member of the family, who in any event, is unlikely to be familiar with what is being described. (We understand that efforts are being made to provide the MIP in other languages.)

Similarly, we know that poverty or low income is not unique only to particular groups and that and that efforts to provide services to those in low-income do not have to be designed for each specific group. Nevertheless, more people in certain groups than others experience it. A significant number of older adults live in poverty.[336] Older women in particular seeking to end or having to respond to their husband’s desire to end a marriage may have difficulty accessing funds to support early access to reliable advice and representation. Low income is also an issue for persons with disabilities. As we indicated above, poverty rates are higher in certain “visible minority” communities. For some groups in particular, poverty will increase the difficulty of accessing help in the first place. Where and how legal aid services are delivered, as well as how their availability is communicated, may be shaped at least in part by the more specific way poverty is experienced by different people. In other words, the idea is not to develop legal aid for persons with disabilities (for instance) and legal aid for older adults, but for persons who cannot afford legal assistance and to incorporate aspects that will be particularly helpful to persons with disabilities and particularly for older adults and no doubt, helpful to others.

 

D.   The Need for Systemic Change 

The barriers that we have identified through our research and our consultation process are complex and our family justice system, as it currently exists, cannot meet them. This is hardly surprising. With some (important) exceptions, our system presumes homogeneity on the part of users, it is premised on the presence of lawyers who have specialized knowledge and training to shepherd lay people through the system and for the most part, it divorces the legal problem from the other issues that attend relationship breakdown. We believe that any further reform of the system must address these issues in order to create meaningful access to the family justice system for the citizens of Ontario. This requires seeing our family justice system as it is perceived by those who need to access the system, ensuring that their diversity is accounted for in the creation of services, as much as possible in line with progressive realization. It also requires thinking creatively about how to provide legal services. Full scope legal representation is out of the reach of many, if not most people.

It has been increasingly recognized that the justice system and lawyers can no longer operate on the all or nothing proposition that traditional legal representation embodies. We must take a hard look at what “lawyering” entails and find ways to create competent and effective legal services outside full scope representation by a lawyer. It is also necessary to find a way to effectively deal with the cluster of problems which arise from marital breakdown and ensure that people have access to the non-legal services they need to ensure the health and stability of their families. 

Our consultations and research and the responses to the Interim Report have shown that people facing family breakdown seek information and solutions in places where they feel comfortable and where there exists a level of trust between them and the service provider. These places, whether formal or informal, whether directly tied to the court system or not, operate as “entry points” into the family justice system: they provide access to family justice. There have been some efforts at developing entry points outside the court house in order to better accommodate the needs of users. These include the recent collaborations between LAO and Family Justice Centres to provide duty counsel services within the centres and the creation of a Family Law Information Program based on the Mandatory Information Program and available to all who have access to it on the internet. These initiatives, however, are limited in scope. In the context of access to justice for rural and remote communities and linguistic minorities, Cohl and Thomson observed,

There is little evidence of province-wide or regional efforts to create a systemic response to access to justice challenges that builds from a shared vision, involves all who need to be part of it, identifies the highest priorities and explores the benefits of working together. While some collaboration and innovative partnerships exist, there are few incentives to create and nurture them. As a result, systemic issues do not get sufficient attention.[337]

This observation can be extended to the access to justice challenges facing many Ontarians in larger communities who find themselves in the midst of family breakdown. We believe a systemic response to the issues that prevent effective access to the family justice system would involve better coordination of efforts to create comprehensive models of service delivery. The model would reflect the benchmarks discussed above and would treat inclusiveness as an overriding value.

In Part Two, we examine recent and innovative developments both within Ontario and in other jurisdictions that may provide valuable lessons and direction to addressing the systemic barriers to family justice in Ontario. Creating these entry points requires significant changes to the way legal services are delivered. Nevertheless, we believe that the optimal approach to addressing these barriers is to strengthen access to service through the creation of integrated entry points and in doing so, also to advance substantive equality in Ontario.

 

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