For readers who are focussing on this Part of the report, the Introduction at the beginning of the entire report may provide useful background about the origins and focus of the LCO’s family law project.
In Part One, we provided an overview of the family justice system, including a discussion of the most recent reforms to the system, briefly measured against benchmarks (which we discuss again below), and remaining important gaps at access points that we believe could be improved. We have adopted an underlying premise that early intervention in family law disputes can minimize the likelihood of an unnecessary protracted dispute before the court and result in better outcomes for families. We recognize that there are cases for which the particular attributes provided by the courts may be the best option; however, as the courts themselves have said, there are many cases that can be resolved prior to or at early stages of the court process. We believe that the current system could benefit from changes in the following areas:
- a more systematic response to Ontario’s diverse population and geography;
- rationalization of the provision of information;
- greater assistance with using information and self-help materials;
- greater provision of affordable legal services; and
- explicit inclusion of responses to the intersection of legal problems with other problems for individuals who are facing family breakdown.
To provide a context for our suggestions and recommendations in this Report, we discussed in Part One the ways in which the structure of and relationships within the family have changed over the past two decades and more recently. In this regard, we referred to common law and legal marriage and sole-parent families and to the legal recognition of same-sex marriage, as well as to the evolving relationship between men and women and between parents and children, both reflective of changes in the broader society. These changes include the greater economic independence of women and the way in which technology has dramatically shifted understandings of time and space that affect the parent-child relationship, for example.
We also discussed how major societal changes have affected the composition of families in another way, specifically the increased diversity in cultural and religious values held by family members resulting from the increase in immigrants from countries other than the United Kingdom or Europe. Similarly, the family system must respond to the aging of the population and to the increased expectations about (and reality of) the inclusion of persons with disabilities. We further noted that the family legal system must continue to grapple with longstanding challenges, notably the situation of members of Aboriginal communities and domestic violence which is perpetrated primarily against women and which cuts across communities. Still remaining, despite greater urbanization, are difficulties associated with geography, whether rural areas or the Ontario north. Literacy levels have still not reached the point at which we can assume that everyone is able to understand and apply to their own circumstances the vast amounts of family information available to assist people in considering their own family problems. Finally, we explained, as have others, that the lack of affordable legal advice and representation remains a problem to be solved.
In the longer term, we believe that these issues can be best addressed through the creation of integrated entry points into the family justice system, that is, multidisciplinary, multifunction centres. However, there are some changes that would need to occur to provide the appropriate setting for the development of these centres, changes which we believe would also benefit the system in the short term. We discuss these possible changes below. As mentioned above, we have developed “benchmarks” that we think reflect the characteristics of a system that responds to the needs of family litigants and applied these benchmarks in Part One in broad terms to the current system. For convenience, we reproduce them here again.
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 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 the multiple problems that accompany family problems, such as mental health or financial problems that may be a stimulus for or exacerbate family problems;
- offers a “seamless” process from early stages to final resolution; and
- is based on a sustainable model.
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