Although our project focuses on entry points to the family legal system, it is necessary to understand how these entry points relate to the rest of the system. The first part of the description of the system therefore briefly outlines the whole system, including entry points which are dealt with again in greater detail in the second part.
There are several challenges in describing and assessing Ontario’s formal family justice system. There are many actors involved and there is a fragmentation of services. This fragmentation can be a result of the way legal information is organized and the way legal assistance is provided to low income persons. The organization of the courts and the multiple forms of non-judicial dispute resolution are another factor. In Ontario the diversity of community organizations linked to the system is another reason for local differences and sometimes a fragmentation of services. In addition, there are many public and private family counseling services.
Family law in Ontario is an area of specialists. For our purposes, it is sufficient and preferable to describe the system in broad strokes rather than become mired in detail that is only peripherally relevant to the focus of the project. We also highlight the positive aspects of the system and describe the challenges it faces. In the next two chapters we will propose reforms to address these challenges.
Any description of the current system must include a description of the reforms put in place over the past two years, some of them following recommendations of reports and analyses of the system. Family justice has been a main focus of the former Attorney General during this period, the Honourable Chris Bentley. The Family Law Act and the Children’s Law Reform Act were amended, including with respect to restraining orders, more sworn or affirmed information (including about domestic violence, child protection involvement and criminal charges) when determining the best interests of the child, annual financial disclosure obligations for child support, and the division and valuation of pensions following marriage breakdown. While these are not directly related to the focus of this project, they should be mentioned because they affect matters which are relevant to making entry points effective and responsive.
Building on several reports about the family justice system and pilot initiatives for procedural family justice reform in 2010, the Attorney-General of Ontario announced four interconnected pillars of reform:
Pillar 1: Providing early information for separating spouses and children;
Pillar 2: Providing opportunities to identify issues and directing parties to appropriate and proportional services;
Pillar 3: Facilitating greater access to legal information, advice and alternative dispute resolution processes;
Pillar 4: Developing a streamlined and focused family court process.
With the four pillars as the starting point, the following services were expanded throughout the province in 2011:
Family Mediation Services, including an on-site and off-site component. Onsite mediation services are available to deal with narrow issues for parties on that day’s court list, and are free of charge. For parties with more complex issues or who require more than one session, off-site mediation services are available for a fee based on income and number of dependants.
A Mandatory Information Program (MIP) that helps families learn about the effects of separation on children and adults and the options available to them to resolve their disputes.
Information and Referral Coordinators (IRCs) at the Family Law Information Centres (FLICs) who provide information about family mediation, effects of separation and divorce on children, and make referrals to community services.
The implementation of these initiatives will be discussed in the remainder of the discussion in this Part. The first three pillars are related to some of the entry points we have identified in this project and we analyze the implementation of the pillars as they relate to the specific entry points.
B. The Current System
The following description of the family law system roughly follows the “usual” path of someone seeking to have his or her family problem addressed by the legal system: the effort to obtain initial and then more advanced information, the seeking of legal or other expert assistance, attempts to resolve the dispute(s) short of going to court and, in some cases, using the court for a definitive resolution of the dispute or some portion of it. This way of describing the system is somewhat artificial, since people are likely to seek information throughout, may avoid non-judicial forms of dispute resolution, and may not only go to court but return to court; however, it permits us to identify the issues that need reform by placing them in a complete context.
1. Provision of Information and Advice
Although people may begin by talking to their family and friends about their family problem, eventually they are likely to seek information in order to help them decide whether they want to take their problem further. At some point, those who decide to do so will be looking for information about the system itself. We explain about the range of information sources and kind of information available here. Obtaining information is likely the first “entry point” to the formal system.
Any problems relating to information do not include a shortage. There is a great deal of information available from a variety of sources, some outside the system and some within it. It is provided online, in written form and in person.
Public (legal) information can potentially play an important role in helping people make informed choices. The information needs of people change as they move through the system. Initially requiring basic information that helps them choose among options for resolving their problems, they subsequently need more in-depth information about how to navigate the option they select. At this point, the information will be more complex and can likely be “interpreted” only with the assistance of a trained professional. Public legal information is often available in brochures, and increasingly online.
The first pillar of the Attorney General’s recent reforms recognizes the importance of early information for separating spouses and children. In 2011 the first pillar reforms have expanded Family Law Information Centres to more courts and introduced a Mandatory Information Program before disputants can access the court process. These instruments will be discussed below. There are constant efforts to develop and improve early information, so that any description of all the sources can only refer to the situation at a certain moment. For example, sources of early information recommended by the Home Court Advantage Initiative included awareness campaigns, brochures and websites which may be developed in the near future.
Close to their communities, individuals may be able to obtain face to face information from workers who can be described as “transitional workers” or “trusted intermediaries”. They can be based, for example, in community organizations or band offices or shelters. For individuals who have literacy problems or are not used to dealing with a legal process, these trusted intermediaries often “translate” into everyday language the written and on-line information which is available through public legal information. The intermediaries can also assist individuals in contacting specialist providers of information and advice.
These workers face several challenges, however:
Access to these entry points may be difficult for individuals as a result of disability, language, culture or distance and the relevant community organizations may need to invest in outreach and accommodations in order to provide the information.
Community workers are not legal experts.
Continuity of services is highly important, perhaps particularly for marginalized persons who are most likely to access community level services. For example, if community services are available, but a user does not have access to a lawyer who can respond to special needs, access to justice may be difficult to achieve.
Online information is available from many sources. The information varies from basic information to more detailed information such as “online forms assistants”, which allow users to fill out Ontario Court Forms with an explanation of legal concepts.[113