A.    What is the Family Law Project About?

This Interim Report is the Law Commission of Ontario’s latest thinking in our Family Law project. It represents our assessment of changes that need to be made to the system to contribute to two objectives: its greater effectiveness for disputants and actors within the system, and increased responsiveness to the needs of diverse family disputants.

The choice of a project in family law reflects the centrality of a process that can effectively address the disputes that inevitably occur in familial relations. The family legal system sometimes needs to be able to help families temporarily in difficulty. It should always be able to assist those whose difficulties have reached the crisis point. Family members whose disputes require a response from the legal system – or seem to, at least – can face a difficult and emotional time. Trying to address their problems can be costly.

The institution of the family occupies a major place in most societies, Canada included, even though the structure of the family may be very different in different societies. This structure differs within Canada, including within Ontario. Irrespective of the structure of the family, we should be able to think of our family as a mainstay in our life, preferably as a sanctuary and source of support.  But sometimes families are a source of discord, hurt and anger. The LCO’s decision to undertake a family law project is a response to the reality that families do break down and that the consequences of breakdown can be exacerbated by the interaction of the parties with the legal system.

The fundamental importance of family life is reflected in international human rights instruments. For example, the family is entitled to protection by the State under the Universal Declaration of Human Rights.[1] Relations within the family as an institution are also considered worthy of international recognition.  Article 16 of the Declaration says that men and women have equal rights to “marriage, during marriage and at its dissolution”.

The legal framework governing family life and its application in Ontario and Canada as a whole has evolved over the past thirty-five years. From treating the man and woman as if they were “one” when they married, Ontario family law legislation now recognizes the equal relationship between the partners.[2] The meaning of “marriage” under federal legislation has acknowledged same-sex marriage.[3] The Divorce Act has been amended over the years to allow for the cessation of a marriage simply on the basis that the couple has decided that their relationship no longer works.[4] Nevertheless, in many ways, the changes to the way the system actually operates have been grafted onto the existing system which has become complex and confusing.

This Interim Report is about creating a legal system that plays an appropriate part in helping the members of families move forward. Inevitably, therefore, it concentrates on the challenges families may face. It also is based on the assumption that many of those challenges, albeit not all, can be addressed by a family legal system that is responsive to their needs.

While there are many aspects of the family legal system that warrant study and recommendations for reform, the focus of the LCO’s project is on “entry points” to the family justice system; put another way, “entry points” are the first approach an individual may take outside his or her immediate family to resolving a family dispute. Some of these entry points are informal (a religious advisor or extended family member, for instance), while others are part of the formal system, by which we mean all government services (such as Family Law Information Centres at the family courts[5]) and paid private services (such as those provided by a lawyer or a mediator) that can assist in the formal resolution of a family dispute. We believe that it is important to “get it right” at the early stages of a family dispute, since the early stages of a family law problem are often crucial for the manner in which a family law dispute is resolved. Points of entry can play an important role in informing families about their options, referring them to relevant services and advising them on the best way to address legal challenges and family disputes.

This Interim Report grapples with a range of questions: How do individuals move from informal to formal entry points? How comprehensively are the individual’s needs identified at the initial formal entry point? What are the ramifications for how those needs are identified and an initial response is formulated? How can the legal system acknowledge and respond to the diversity of Ontario families and the relationship of their members to broader communities? How can costs be reduced, both to family disputants and the system itself? How can “workers” in the system most effectively fulfill the tasks expected of them?

We do not address methods of entering the system other than those applicable to disputants seeking separation or divorce. We do not, for example, consider child protection proceedings or, except in a minor way, issues that arise because one partner or parent has been charged with a criminal offence in relation to the other partner or children. Nor do we address situations in which the state requires individuals to enter the system.  For example, Ontario Works[6] and the Ontario Disability Support Program[7] may require custodial parents to seek support from the other parent, and Passport Canada can require custodial orders.[8] As a result, people who did not want to deal with the other partner may have to enter the family justice system. This may put extra pressure on the family justice system at the behest of the state, in particular in conflictual situations. Although this aspect of entry points may require further research, we will not address this in this study. We do also not address in detail issues relating to children, although we acknowledge that they may have an active part even at entry points to the system.[9] Identifying appropriate children’s rights and how they might exercise them merits a specific study. However, in this interim report we will briefly address some of the main concerns about information for children, who often feel left out in a family law process.

B.    The History of the Project

The Family Law project was designed after considerable preliminary consultation.  Even before the LCO began operations, its initial call for proposals was answered with a variety of family law proposals[10] and the LCO has received additional proposals since. The LCO undertook a study of the division of pensions on marital breakdown as one of its first projects, with the purpose of identifying “the” rule for when to value pensions.[11] Its recommendations in the Division of Pensions project were largely adopted by the Ontario Government in its reform of family law in 2009.[12]

Given the large number of quite different proposals in family law, we held a Family Law Roundtable in September 2008 as a way of assessing what workers in the family law system believed the most pressing issues to be. Participants included clinic workers, private lawyers, academics and representatives of community organizations, the Ontario government and the judiciary, among others. We subsequently released a paper setting out two options for a family law project, one on process and one relating to the matrimonial home.[13] Although both potential projects received support, overall the LCO determined that it could make a more effective contribution to the area by developing a process-related project. Accordingly, in June 2009, the Board of Governors approved a project to explore entry points, formal and informal, into the family law system. The LCO released a Consultation Paper in September 2009.[14] Following consultations, we released the results; this paper did not attempt to analyse the results, but simply reported them.[15]  The concerns and observations of those who participated in this consultation process have been taken into account in developing the draft recommendations in this Interim Report.

The project has benefitted considerably from the input of the Ad Hoc Project Advisory Group composed of academics, members of the private bar, government representatives, judges and workers in legal clinics and community organizations (see p. ii for a complete list of members). The participants in the consultations, other public feedback, the members of the Advisory Group, the LCO’s own research and commissioned research papers[16] have all contributed to identifying the major issues addressed in this Interim Report and to the draft recommendations.

The LCO is only one body engaged in law reform around family law. Most notably, the Ministry of the Attorney General has undertaken a number of reforms of the system around the theme of “four pillars” of reform. These are discussed later in the Interim Report. Other studies and bodies that have played a major role in identifying and responding to the need for family law reform include:

  • Recapturing and Renewing the Vision of the Family Court (“the Mamo Report”);[17]
  • The Home Court Advantage project; [18]
  • The Superior Court of Justice Family Law Strategic Plan;[19]
  • The Ontario Court of Justice Family Law Vision Statement;[20] and
  • The University of Toronto Middle Income Access to Civil Justice Initiative.[21]