Part II, Section IV: A Comprehensive Approach for Accessing Family Justice: Multidisciplinary, Multifunction Centres or Services

////Part II, Section IV: A Comprehensive Approach for Accessing Family Justice: Multidisciplinary, Multifunction Centres or Services
Part II, Section IV: A Comprehensive Approach for Accessing Family Justice: Multidisciplinary, Multifunction Centres or Services2017-03-03T18:33:20+00:00

A.      The Approach

The government of Ontario has taken up the challenge to create better partnerships among service providers. Given that many service providers delivering public services are from the non-profit sector, the government is looking at ways to strengthen its relationship with this sector. In 2010, the Ontario government launched the Partnership Project, led by the Ministry of Citizenship and Immigration and the Trillium Foundation. A report in 2011 described the “conversation between Ontario’s not-for-profit sector and the Government of Ontario.”[466] The conversation focused on

  • ways to improve collaboration between government and not-for profits;
  • policy and legislative frameworks to enhance the effectiveness of the not-for-profit sector;
  • funding mechanisms and new approaches to financing that would allow not-for-profits greater fiscal security and flexibility; and
  • more effective methods of coordinating policy, research communication and practice.[467] 

The Partnership Project report contains the following recommendations:

  • Promote a culture of respect and recognition within government and within the public by appointing a minister to be responsible for and accountable to the sector and by issuing an annual report on the state of the non-profit sector and the progress made in strengthening its relationship with government.
  • Foster coordination and collaboration by providing the not-for-profit sector with an identifiable, central and authoritative point of contact within government.
  • Build sector capacity through enhanced communication, avenues for greater collaboration in policy development and legislative and regulatory oversight, work with the sector to develop new approaches to funding, as well as appropriate performance measures and invest in projects which support intra-sector cooperation, communication and networks.
  • Leverage technology to break down silos, increase transparency and share information.
  • Invest in social innovation.[468]

In March 2011, the government announced the creation of the Partnership Advisory Group to Project Partnership Office to implement the Report’s recommendations.[469]

The Trillium Foundation has taken a great interest in the development of collaborative partnerships to help build greater capacity in the not-for-profit sector. Trillium’s granting program supports collaborative efforts through flexible, multi-year grants. In the past several years, 16 per cent of all grants have been to collaborative initiatives.[470] For example, through its Future Fund, it funded the environmental sector to build capacity by having larger organizations to partner with smaller groups.[471]

Some of the models described in the previous section are representative of the kind of partnership efforts envisioned by the Drummond Report,[472] the Ontario Government and the Trillium Foundation. Many of the costs which would need to be incurred to create a multidisciplinary centre are already being incurred. For example, in the Consortium Model, there would be some additional costs to co-ordinate the delivery of the services which are already being provided, but would not add significantly to the cost of providing these services, yet would add the value of coordination. In the Family Justice Centre model, each service provider is delivering the services within their own budgets. The Centre provides a place for the services to be delivered and the visioning and strategic planning process allowed these services allowed for deeper integration of these services and the use of common tools and processes. The principle of progressive realization promotes identifying a long-term goal, taking steps to achieve that goal as feasible, identifying the continued gaps and stating how the gaps would be filled. This approach could be taken to creating the centres.

The consortium approach might work well in urban centres with large populations and many service providers. In other parts of the province, it may be necessary for the services to be provided directly by the government either through the creation of centres or through the use of technology to create “virtual centres” as there are few services providers locally. Increasingly sophisticated ways of using technology make this more feasible than in the past where appropriate.[473] Over time, access to the internet will improve everywhere. However, the use of technology may not be optimum until all areas of the province have access to broadband internet or other means of access. In this regard, an interim measure might be mobile services that can provide in person assistance on a regular basis with access to virtual resources.

As stated above, the fact that the practice of family law remains largely a private enterprise is a challenge to the creation of multidisciplinary centres. The legal services provided in the Consortium model are provided by a community legal clinic and the legal services in the Family Justice Centres are provided by Legal Aid Ontario. A multidisciplinary centre operating as an entry point into the family justice system will need to find a way to deliver some legal advice and assistance historically provided by a lawyer for those that cannot afford legal services but do not qualify for legal aid. However, links can also be established between private practitioners and the centres. The ability to do this will improve if the stakeholders in the justice system move toward making the changes contemplated previously in Part Two intended to improve the accessibility of legal services. For example, a multi-disciplinary centre could have a lawyer on retainer providing summary advice and other limited scope services to clients, as well as students and possibly paralegals, under the lawyer’s supervision. If Legal Aid Ontario provided some services to a broader number of individuals, then it could have a greater role to play in the development and delivery of the legal services component of a multi-disciplinary centre.

 

B.      Considerations in Implementing Multi-Disciplinary Multi-Function Centres

1.      What are the Challenges?

Perhaps the biggest concern about the establishment of these centres that we heard about is what they may cost to implement. In the Interim Report we recognized that the establishment of these centres may be aspirational given the current economic climate and we received responses which echoed this point. For example, the Ministry of the Attorney General underscored the need for considerable resources, including facilities costs, and the Advocates’ Society stated that funds could be better spent on improving the existing supports. However, as we have discussed above, there are various models of integrated service delivery, some of which do not involve a significant investment of public money or infrastructure. 

Apart from the concern about cost, there are several practical and logistical challenges that would arise from the integration of services provided by different professionals and different organizations.[474]

A group of professionals working together in a team may have different professional obligations set out by their own regulator. Lawyers are able to offer services in conjunction with other professionals. However, rules that govern lawyers entering into a partnership with other professionals designed to protect users of legal services make this a limited option today. These rules are of particular significance for our long-term recommendations about multidisciplinary centres. 

Rule 6.10 of the Law Society of Upper Canada’s Rules of Professional Conduct states, “A lawyer in a multi-discipline practice shall ensure that non-licensee partners and associates comply with these rules and all ethical principles that govern a lawyer in the discharge of his or her professional obligations.”[475] Multi-discipline practices are governed by Law Society of Upper Canada By-law 7. It provides, among other things, that a “licensee” (under the Law Society Act) may provide the services to a client of someone “who practises a profession, trade or occupation that supports or supplements the licensed activity” and may enter into a partnership or association (that is not a corporation) in order to do so, as long as the entity satisfies certain conditions. The conditions include the following: the other professional abides by the Law Society’s rules and would be under the “effective control” of the licensee; the licensee is responsible for ensuring that the other professional practices his or her profession with the “appropriate level of skill, judgement and competence” and that the other professional abides by the Law Society’s rules; and that the licensee maintains insurance coverage for the other professional in the amount the licensee acquires for him or herself.[476] Our recommendations are not designed for private firms; however, the ease of structuring multidisciplinary centres in a way that is truly collaborative may be affected by these rules.

Other professional have their own rules. For example, there are different professional obligations with respect to confidentiality and the duty to report. Lawyers in Ontario have a duty to maintain client confidentiality under Rule 2.03 of the Rules of Professional Conduct which is subject to the requirements of the law. Some professionals working in a multidisciplinary family centre may have a duty to report suspected physical or sexual abuse of children under section 72 of the Child and Family Services Act.[477] Lawyers are exempted from this requirement, however, which does not abrogate solicitor-client privilege.[478] This concern about confidentiality is acute for survivors of domestic violence. In its response to the Interim Report, Luke’s Place supported the creation of multidisciplinary centres but cautioned that many women survivors of violence are concerned that their information be kept confidential. 

Jacobs and Jacobs discuss other factors which suggest a “culture clash” between the professions that may be involved in resolving the issues arising from family breakdown. MacFarlane notes challenges in determining issues of control and role parameters as well as differences in practice methodology and philosophy.  She observed that: “[t]here is a tendency for each profession to value its particular expertise above others”.[479] Those in the helping professions may regard lawyers as overly adversarial and skeptical of the judgments of others. There is concern that lawyers escalate conflict. Professionals may also have pre-conceived notions about the nature and value of work done by other professionals. Moreover, the perspective of what the appropriate outcome should be may be informed by the professional’s perspective. For example, inconsistent behavior and memories may be understood differently by a social worker who is counseling a client as compared with a lawyer whose advice may change depending on the facts provided by the client. This last, at least, should be an advantage of multidisciplinary service provision if professionals are open to learning from others. 


2.      Meeting the Challenges

While cost is an extremely important consideration, there must also be consideration for the heavy cost both directly and indirectly in continuing to operate a confusing family justice system primarily premised on services that many people cannot afford. Unrepresented litigants, including in family law, do not only endure their own cost in attempting to navigate a complex system, but also impose a cost on opposing clients and their lawyers, as well as judges. While strengthening the court based services as has been done is a good idea, this will not address some of the issues which we have identified and discussed elsewhere in this Report that arise from the court’s being the main entry point into the family justice system. These include the need to emphasize accessible alternative approaches to resolving family disputes, the recognition that family problems are often highly interrelated with problems of other kinds that have either led to or reinforce the legal problems and the importance of responding to the growing demographic diversity in Ontario.

Logistical challenges can be addressed. When Catholic Family Services established the Peel Family Justice Centre, these issues needed to be resolved. This involved a visioning exercise and strategic planning process including all the agencies in the partnership over the course of one and a half years. This culminated in the development of terms of reference and a conflict resolution process. We do not claim that this process will be easy. When we spoke with Shelina Jeshani, she advised that the centre did struggle with issues around confidentiality and by the time she left the organization, they were still fine-tuning the process.[480]

 

3.      Quality Assurance

With our view that multi-disciplinary centres can be created in a variety of ways with the involvement of a number of stakeholders, it will become important to ensure that the centres are consistently providing high quality services. An oversight function is important. In the social service sector, the Family Service Association of Ontario provides support to family service agencies across the province. It provides several services to its member agencies, including advice and support and accreditation.[481] 

With respect to accreditation specifically, Family Service Ontario operates the  Canadian Family Services Accreditation Program (CFSAP) which “is designed to provide an evaluation of the quality of services offered to families and individuals through the non-profit sector”.[482] It promotes quality assurance among organizations serving families in Canada by providing an evaluation of a service provider’s Governance and Administration, and an evaluation of a number of the programs offered. The web site sets out a detailed accreditation process and notes that the standards for accreditation are continuously updated, accreditation reviewers are well-selected and training policies and procedures are current and relevant. Given that the core element of our comprehensive services will remain “family law”, it will be important to create a form of evaluation that assesses the quality of legal services and how well they have been integrated into the delivery of other relevant services and forms of assistance.

 

4.      Linking the Centres with the Rest of the System

A critical role to be played at the entry point is identification of the nature of an individual’s legal and related problems and the range of available remedies.  As others, we have described this function as “triaging”. 

Even though all stakeholders in the family justice system have identified the importance of early intervention in family law matters and the value of non-court based resolution of services, it is important to emphasize that in some cases, the courts will continue to be the most appropriate venue for the resolution of the dispute. Moreover, the court has an important role to play in the context of other forms of dispute resolution as the mechanism of final resort; many people might not willingly resolve their matters outside the court if the option of the other party to present their case to a court were not available. Dialogue is important and can facilitate a smooth transition. For example, Legal Aid Ontario operates a Family Law Service Centre close to the Ontario Court of Justice at 47 Sheppard Avenue East and The South Legal Clinic of Ontario (SALCO) is located next door, “working independently but adding to the synergy of LAO’s one-stop resource for clients seeking information, support and legal services in the hub for all family law court matters in the Greater Toronto region”.[483] As described above, the Family Law Service Centre provides services from the provision of summary advice to full scope legal representation. The staff of the Family Law Service Centre have forged strong links with the court and provide a clear link to the court when urgent judicial intervention is required, for example in cases of domestic violence where a restraining order is required.  

It is important therefore that these “entry points” be seen as gateways to the appropriate remedy and not a barrier when the most appropriate remedy is the intervention of the court. These entry points therefore need to be seen and understood as being integrated with the family justice system and not operating outside it. They should be seen as part of a larger family-related system that includes community centres, women’s shelters and other services, including those serving Aboriginal, ethno-cultural and disability communities, among others, and the courts. The other services should view the centres as the most effective place to refer clients who come to them first, and they should be integrated into the way the centres operate.

 

C.      Satisfying the Benchmarks

There will be many other challenges in addition to those discussed above that will need to be addressed but we believe that none is insurmountable. We urge the principal stakeholders of the family justice system to follow the example set by the stakeholders in the healthcare system to move toward developing a framework for creating multi-disciplinary multi-function entry or access points into the family justice system which capitalize on existing resources as much as possible and leverage services already provided to various and diverse groups in Ontario.

Once a model or models have been designed and a strategic implementation plan developed, the province can establish a pilot or pilots. It might be most useful for two different pilots to be instituted in different areas of the province. As the development of the health care model showed, it can take up to two years to engage in the process. Yet this process can result in transformation of the family justice system in crucial ways.

The focus of the comprehensive services we are suggesting is the provision of legal services; other services complement the legal services. In that sense, unlike some of the examples above, legal services are not an adjunct to other services. A variety of services can be housed in one location, as in the family justice centres in the United States,[484] or legal and certain other services that are used more often can be provided in one location with easy access to others needed by fewer people or best provided off-site. The model can be more of a collaboration than a single entity providing services (with access to other more specialized services as needed), as in the Connecting Region Initiative. Individuals would have access to one individual who could provide information, make referrals (taking advantage of other expertise available as appropriate) and oversee the provision of other services as appropriate. 

The services would be available to all individuals with family problems who require legal (and most likely other) assistance; this model would therefore differ from those that exist that are specifically directed to women who are victims of domestic violence, although this model would provide specialized services or ensure that victims of domestic violence had access to those services in a more appropriate location if necessary (in a community centre or a family justice centre, for example). The closest model of those described above is perhaps the British Columbia Justice Access Centres, although we are not suggesting that the model provide services for all civil matters.[485] Either in the centre or easily on call culturally relevant services would be provided, as would assistance for people with language or literacy difficulties, for example. The key element in all of these centres is that the services will be delivered in a way that is sensitive to client needs in order for the client to be able to move through to a resolution, whether at the stage of the centres or in the court system to which the centres have been linked. 

While discrete attempts to improve access to the family law system can have a positive impact, it is crucial that they contribute to a coherent form of access to family justice. It is also important that access be meaningful for those whose financial circumstances do not allow them to retain a lawyer, or whose life experience does not readily respond to the mainstream system. Just as one can have “too much choice”, one can have access to too much information without knowing how to distinguish its value to one’s own circumstances. Less costly ways to increase access to justice include recognizing the value of law students and trusted intermediaries, and, possibly, paralegals. Greater reliance on these service providers, while not replacing lawyers, can, with appropriate training and supervision, be of great assistance to those who cannot afford a lawyer and yet have too many resources for legal aid. More limited retainers can also help. We believe all of these options have merit individually. We also believe, however, that a comprehensive integration of these services, as well as a recognition that for many people in family disputes, non-legal problems can be as important as or perhaps even more important than the ostensibly legal problems. Therefore we recommend the development, in a variety of forms, as appropriate and feasible, of comprehensive multidisciplinary, multifunction services constituting a “real” or “virtual” centre. 

The comprehensive approach to accessing the family law system that includes the suggestions we offered in Chapter II of this Part integrated into the multicultural, multifunction centres, properly linked with other relevant actors in the system, would meet the benchmarks we identified above, by

  • Providing accessible initial information where people are likely to see it in places people regularly frequent;
  • Providing more detailed information in print and on the internet through a single hub that allows people to decide whether they want to deal with their family problem through the legal system, with the assistance of trusted intermediaries including those who can address different educational and literacy levels; the presence of domestic violence and other factors such as cultural norms, Aboriginal status, gender, sexual orientation, age, language, disability, geographic location and similar factors that affect people’s interaction with the family legal system; 
  • Offering coordinated resources that helps people determine the actual nature of their problem in a timely way;
  • Having programs that have been developed in consultation with affected communities;
  • Responding to issues of financial capacity without compromising the quality of service through service provision by lawyers using different models and persons legally trained but not necessarily lawyers, with appropriate regulation and supervision ;
  • Recognizing and responding to the multiple problems that accompany family problems through direct inclusion of or easy access to non-legal expertise;
  • Offering a seamless process from early stages to final resolution through the comprehensive nature of the services systematically linked to later stages of the process; and
  • Being based on a sustainable model developed in conformity with the principle of progressive realization.

 

 

 

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