III. The Family Law System: An Overview with a Focus on Entry Points

III. The Family Law System: An Overview with a Focus on Entry Points2017-08-30T19:05:54+00:00

A.    Introduction

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[106] and the Children’s Law Reform Act[107] 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.[108] 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.[109]

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.[110]

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.[111]

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.[112]

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] Although a number of publications on the federal and Ontario government websites were not developed for online users, more recent information has been explicitly designed for interactive use on the internet. In early 2011 the Law Commission of Ontario counted nearly 700 pages of public information in Ontario which were available through more than ten internet sites.[114] Most of the publications can now be accessed through the website of Community Legal Education Ontario (CLEO).[115]

The main Government of Ontario website functions as a first source of online information. It has a “life events” bundle of information about separation and divorce. These bundles of information act as a front door to information within the provincial government about a topic.[116]

The Ministry of the Attorney General’s website functions as a main hub for public legal information on Ontario family law. It consists of two sections on family law. The first part of Justice Ontario contains a list of questions and answers on family law.[117] The second part is entitled “Separation and Divorce” and contains more general information. As mentioned, the Ministry of the Attorney General has also developed the Ontario Forms Assistant which allows users to complete the most frequently used family law forms.  Once a user selects a form, the program leads users through a series of plain language questions.  The Forms Assistant uses the answers to populate the court form. The forms can be printed and saved.[118]

The Attorney General’s website also contains lengthier publications, such as ”What you should know about family law” which was first published in 1999 and updated since.[119] Other material includes “‘Helping Children and Youth Live with Separation and Divorce”. There are also federal materials, which can be accessed online, such as “Divorce law – questions and answers”, first published in 1986 and updated in February 2006.[120] Furthermore the Department of Justice’s Supporting Families Initiative offers information for parents and children.[121] Canada Benefits has a section on Divorce or Separation with an application kit.[122]

Legal Aid Ontario launched a Family Law Information Program (FLIP) in March 2011. FLIP is available on Legal Aid Ontario’s website, and uses both audio and text. The goal of this online program is to help users make more informed decisions about the legal and emotional issues resulting from the breakdown of a relationship.[123] FLIP provides information on legal and practical issues related to separation and divorce, the court process and resolution methods. It also suggests that although using methods of resolution other than courts is desirable, sometimes going to court is the only realistic option.[124] In addition to legal issues, the site also discusses personal and interpersonal issues that adults and children may experience when relationships break down and describes resources and strategies that may provide assistance.[125] The program takes people through the various steps and issues in “bite-size” segments that show diversity in families. At the end of the program, users can print a certificate of completion directly from their computer. The website indicates that clients of Legal Aid Ontario may be required to produce the certificate to show that they have completed the program.  The content of the FLIP is very similar to the content of the Ministry of the Attorney General’s Mandatory Information program.

Other organizations have developed concise plain language information with public funding. CLEO[126] and Family Law Education for Women (FLEW)[127] post plain language publications on family law, offered in several languages and formats. In addition they have specific information for victims of domestic violence or situations of child abuse. FLEW offers family law information designed for  immigrant, refugee and non-status women, Aboriginal women, Francophone women, immigrant women who undertake domestic work and are caregivers, Jewish women, Muslim women, women of Christian faiths, women with disabilities and Deaf women (in audio, ASL, braille and large print).[128]

Basic information provided by community organizations and through written and online information needs to be followed up by more in-depth (summary) advice. Many sources of early information advise people to seek a lawyer’s advice.[129] For example, FLEW advises: “When your relationship ends, you should have a lawyer who knows family law to help you. If you do not get legal advice, you may give up some important rights that you do not know you have.”[130] FLIP also states that “[i]t is important to get legal advice about your separation or divorce”.[131]

In practice many users will receive their main point of entry information and summary advice from legal workers, including private lawyers. Although paralegals in Ontario formally do not offer family legal services, as will be discussed below, in practice individuals may seek a paralegal’s advice, in particular for simpler, uncontested cases.

Independent legal advice may be necessary at different stages of the process, initially as a source of information and subsequently as a source of advice and/or representation, regardless of the form of dispute resolution selected. There is a practical but also a legal difference between general legal information and independent legal advice in a concrete case. A legal adviser can normally not give independent legal advice to both parties in a legal dispute, because of a potential conflict of interest.[132]  In some cases this means that, for example, legal workers in legal clinics can only give advice to one person in a family dispute and would have to refer the other person to other providers of legal services, if available. However, we note that the 77 legal clinics funded by LAO,[133] which offer services closer to the communities, do not, in general, offer services in the area of family law, as family law is often too specialized, complex and time-consuming. In practice, legal clinics can play a referral role in the area of family justice.

For those who are able to afford it, retaining a lawyer will be the most effective way to obtain information and advice about complex matters. It is also possible to obtain summary information or legal consultation at an early stage by telephone. For example, the Law Society of Upper Canada offers a lawyer referral service for a 30-minute free consultation, during which parties can explain about their legal issues and hear about their options.[134] There is no financial eligibility criterion for this service.

Legal Aid Ontario offers a telephone-based Client Service Centre, in which eligible clients may speak with a lawyer for up to 20 minutes of summary legal advice and information. In April 2011 the eligibility criteria were based on income and family size, which ranged between an annual gross income of $18,000 for a single person to $43,000 for a family of five or more.[135]

The provision of other subsidized legal information, summary advice and legal advice in family cases in Ontario is mostly offered through the court house. We observe that there is an increasing focus on the family court house as the entry point for information and summary advice for users.

At the court house individuals can obtain general point of entry information and non-legal summary advice services through an Information and Referral Coordinator (IRC) at the Family Law Information Centre (FLIC). The IRC’s services can be accessed on a voluntary basis and are free of cost. The IRC provides information on alternative dispute resolution options, issues related to separation and divorce and community resources and referrals to court-annexed mediation services and to the free Mandatory Information Program for parents who want to access the court process. The role of IRCs has been strengthened and these services have been expanded to more court locations as part of the recent reforms. Bala points out that that the extended use of IRCs (at the FLICs) can have value for unrepresented individuals, but expresses his concerns about the qualifications and resources of IRC’s, and considers it, at this stage, not appropriate to make a meeting with an IRC mandatory.[136]

The Mamo Report extensively described the FLICs over the period 2003-2006. The authors were concerned about a lack of consistency and sometimes a lack of essential facilities in the FLICs. For example, opening hours and physical space varied significantly at the time of their research. Most FLICs did not have a child-friendly area. The staff worked part-time and there was limited cooperation with community organizations. There were not always computer terminals.[137]

The LCO’s consultations in 2010 also showed that there were still important differences among FLICs and the participants’ experiences were mixed.[138] For example, one FLIC had a social worker on site, had an extensive network with community organizations to which it could refer users, had a quality control mechanism and could assist about 48 users per day. Other FLICs, however, had very limited opening hours and no meaningful legal services connected to them. It was also mentioned that one FLIC focused more on the court process than on collaborative procedures.[139] French language capacity also varied.[140]

Jacobs and Jacobs noted concerns of professionals that the FLICs are intimidating for some users.  Professionals also contend that a referral to a FLIC is part of an adversarial approach and others were not convinced about the usefulness of the services provided by a FLIC for the particular needs of a client.[141] People in smaller cities reported unease about the public visibility of going into the courthouse, where FLICs are located.[142] The LCO’s respondents noted similar concerns about privacy when they visited the FLICs.[143]

Family court locations that still do not have separate FLICs after their expansion to more sites, do have other sources of information, including publications about separation, divorce and child protection issues (for example, “What You Should Know About Family Law in Ontario” in nine languages; the Ministry’s Guide to Family Procedures; information about legal services, the court process and court forms); and at certain times a Legal Aid Ontario Advice Lawyer is available.[144]

As of 2011, if either spouse/parent has started a family court case, both spouses/parents must attend the Mandatory Information Program (MIP) available at family court locations across Ontario as the first step in the case. There are a few exceptions to the mandatory attendance requirement, including when parties are proceeding on consent or when the only claims made are for a divorce, cost, or an order incorporating the terms of an agreement or prior court order.[145] Like Legal Aid’s Family Law Information Program, the MIP provides individuals with information about separation/divorce and the legal process, alternatives to litigation, family law issues, the Family Court process and local resources and programs for families facing separation and/or divorce. The information goes beyond “the law” and covers issues such as constructive communication between parents, a parenting plan and overview of resources for creating and implementing a parenting plan. The program is given by a volunteer lawyer and a volunteer social worker. They can give general information, but there is little room for individual advice.

Low income individuals can access legal information and advice services provided by legal aid advice lawyers and duty counsel at the courts. The advice lawyer’s and duty counsel’s advice can prepare individuals for concrete steps in the court process, as will be discussed later, but in the earlier stages of a dispute the information also allows individuals to make choices about the methods for dispute resolution, including non-judicial dispute resolution.

Thus there is, as shown above, a great deal of information which is available in different formats. It is not entirely clear how effective each of the formats is, however.

The workers who were interviewed for the Mamo Report expressed doubts about the effects of the written information which was available at the courts’ FLICs. Although the quality of the materials was not questioned and some publications were popular with users, “[t]he utility and possible effectiveness of pamphlets/brochures compared to the cost of producing such materials should be reviewed to ensure that resources are being used effectively”.[146] We agree with the need to review, at regular intervals, the effectiveness of the public written information in light of the various user groups.

The written sources of early information may contain some duplications and some public information may be lengthy or in need of a more modern format. However, publications can have multiple user groups and be effective in several ways. Some materials, for example those developed by CLEO, may not only be used by individuals, but also by community legal workers or pro bono students, in order to assess legal problems and to give general information to their clients. The materials developed by FLEW give specific information for women belonging to various communities and may address the specific information needs of these women. We note, however, that there are not similar materials developed for men.

While the individual sources of written (audio and other format) information may address the needs of specific user groups, when they are offered online they become part of a vast amount of information that can be hard to access without a clear entry point. The LCO’s own review of the various websites with family law on-line information revealed that it was often complex and detailed and, in the case of the Ministry of the Attorney General’s website, at least, highly reliant on legal language. For example, a user who accessed the section about “family law” on the Ministry of the Attorney General’s Justice site would see as the first question “I want a divorce. What do I do?” The answer immediately directs the user to complex information on court procedures which consists of nine guides. In total, there are about 50 pages with complex information.[147]

The challenges in Ontario’s provision of public on-line information are not unusual. The 2010 Organization for Economic Cooperation and Development (OECD) report, The Future of the Family to 2030, describes the “failure of e-government” for families: “Most e-government websites have a lot of information – the shop window – perhaps even too much information online”.[148]

Listening to Ontarians found that most respondents were unaware of public online resources.[149] Until March 2011, when Legal Aid Ontario launched FLIP, only very few users accessed the written information provided or funded by the government or LAO. Only one in eight of the persons surveyed had heard of any of the government sites mentioned. During the LCO consultations, it was nevertheless mentioned that, in comparison with other sources of information, provincial and federal government websites were the best known. It was recommended that web pages should not be overburdened and should have clear links corresponding to people’s needs,[150] which may be an indication that the information did not meet users’ expectations in this respect.

2.     Access to Legal Services 

Availability and Cost

The costs of legal services are a main factor in determining whether parties access legal assistance and for what purpose. The average legal fee for a contested divorce in Ontario is about $12,000 per party.[151] The average legal fee for a case which results in a trial in Ontario is even much higher: over $45,000 per party.[152] Retaining other private sector professionals, such as mediators or assessors, may add to the cost in Ontario divorce and separation cases.[153]

For disputants for whom legal fees are (very) high, there can be significant pressures that can affect the outcome of a family law process. For example, the relationship between users and their lawyers can be negatively influenced by financial aspects. Users have anxieties about legal fees, while lawyers cannot entirely predict costs.[154] This is an extra complication in a communication process which can already be complex. The LCO’s 2010 document on its consultations states, “The cost of legal and other professional services constantly came up during consultations.”[155]

The costs of the legal process can be off-set by legal aid, administered by LAO. Section 1 of the Legal Aid Services Act, 1998 states that the purpose of the Act “is to promote access to justice throughout Ontario for low-income individuals”.[156] Among other aspects of providing legal aid, the statute identifies flexibility and innovation as desirable, and that “the foundation” for legal services in criminal and family law is the private bar and “clinics [are] the foundation for the provision of legal aid services in the area of clinic law”. For the most part “clinic law” currently does not include family law cases. The Act also refers to “identifying, assessing and recognizing the diverse legal needs of low-income individuals and of disadvantaged communities in Ontario”.

Legal aid for representation by a lawyer is available only for persons with very low incomes. A single person with a gross income of over $12,500 or a lone parent family with two children and a gross income of over $26,220 are currently unlikely to qualify for a legal aid certificate.[157] This excludes a large proportion of low- and middle income Ontarians from subsidized legal representation by a lawyer. For low-income persons who are financially eligible for full representation, legal aid will cover certain matters, but not others. For example, a certificate can be obtained for family matters such as custody, child access and child support and property division, but not for spousal support.[158]

Listening to Ontarians identifies family law as an area of law where access to justice can be difficult to achieve.[159] Trebilcock wrote in 2008 that several submissions [to his review of Legal Aid] argued that financial eligibility criteria are not reflective of current financial realities and impact particularly heavily on already vulnerable populations. A number also noted the significant lack of access to justice for the working poor and middle class, and the increasing phenomenon of unrepresented litigants. Many submissions expressed particular concerns over the very restrictive access to legal aid assistance in family law matters.[160]

Family law experts also hold that “the amounts of time allowed for lawyers in legal aid certificates are clearly inadequate.”[161]

Trebilcock further noted that nearly 8% of people qualifying for legal did not manage to find a lawyer, while in 50% of the cases there was a significant delay before the legal aid certificate was acknowledged.[162] In part, this is because of a decreasing number of family lawyers working on a legal aid basis.[163] Possible reasons for a decline of the number of family lawyers are the hourly compensation for legal aid (although this has been increased since Trebilcock’ 2008 Legal Aid Review), but also the emotional toll which family cases take on lawyers, frustrations about the process and the competition with other areas of law.

It is, without further research, not clear to what extent the limited legal aid funding and high costs affect different groups of users. It is, however, clear that the high percentage of litigants who are unrepresented are, at least in part, the consequence of high costs of the legal process, which for low and middle-income disputants are not compensated by legal aid for full representation.[164]

The lack of (full) legal representation can in some cases jeopardize the goal of access to justice in several ways:

  • Some Ontarians may not access the family justice system at all.[165]
  • The equality before the law for disputants and the “symmetry” of the process may be at risk, if one person has access to legal assistance and another has not, or if one  person has access to more extensive legal assistance than the other person.[166]
  • Court cases in which one or both parties are unrepresented can show significant delays.[167]

The “asymmetry” between a represented and unrepresented litigant can also affect the person who is represented.  The extra time which is often needed in such cases is reflected in extra lawyer’s fees for the represented party.[168] Lawyers surveyed by Bala and Birnbaum also noted that their clients believe the court favours the unrepresented party.[169]

The lack of legal representation can come at a human cost and at a fiscal cost:

  • Self-representation is stressful and will in particular affect lone-parent families and their children who already face financial and personal stress.
  • Self-representing (unrepresented) litigants put pressure on the system and its workers as they need more guidance and are more likely to make procedural errors.[170] Despite some guidance for judges[171], in practice judges’ attitudes towards unrepresented litigants can vary.[172] Participating judges mentioned in the LCO’s consultations that they found it sometimes difficult to deal with unrepresented litigants.[173] Mamo, Chiodo and Jaffe describe the frustrations of judges about unrepresented litigants who have not received input from duty counsel.[174]
  • Court staff will face extra pressures because they have to deal with unrepresented litigants who can be “impatient”.[175]
  • Lawyers reported communication pressures because of unreasonable unrepresented litigants with whom they have to deal.[176]
  • When users have limited access to lawyers because of costs or availability other workers outside of the court system can face a burden of work. This is the case for legal support workers and transitional support workers who are not lawyers but have some legal knowledge and typically work at legal clinics or shelters for women who have been abused.[177]

Both unrepresented litigants and persons who pay high legal fees may perceive the system as unfair and develop negative attitudes.  The 2009 Canadian study, The Legal Problems of Everyday Life, says that outcomes that are perceived to be unfair produce negative attitudes.[178] People who have received helpful assistance are more likely to have positive perceptions.[179]

Unrepresented Litigants

The high cost and limited availability of legal services have meant that many litigants represent themselves. The subsidized services that exist to assist them can be described as legal assistance short of full representation, or “self-help”.[180]

While low income persons may qualify for subsidized legal services short of full representation, those low and middle income persons who do not meet the (financial) eligibility criteria for these services may have to rely on limited assistance provided by private lawyers, general assistance provided by the courts with respect to court processes and forms, and/or more in-depth legal written and online information provided by the courts and the Ministry of the Attorney General.

In order to develop a consistent self-help strategy, it is important to know the needs of persons for whom self-help could be a solution.

There is some information on the profiles of self-representing or unrepresented litigants, although it does not reveal consistently significant differences between represented and unrepresented litigants, including on the basis of gender.[181] From research and surveys that have been conducted in Ontario and in comparable jurisdictions a general picture emerges of unrepresented litigants who, despite often higher education,[182] have “an overwhelming need for procedural advice”.[183] Such advice and support can include information about court procedures and forms and the rules of evidence.[184] For people in vulnerable positions because of multiple problems, research shows that they often do not know where to go for advice and that they are in need of help at entry points to the civil justice system.[185]

Langan’s 2005 survey among 35 unrepresented users in the Kingston Family Court, showed that users perceived “filling out forms” (60%), “knowing my legal rights” (57%) and “negotiating with/talking to lawyers” (37%) as raising the most difficulty.[186]  Sixty-five per cent thought that self-representation increased the amount of time it took to resolve the matter. In 57% of the cases self-represented parties were not able to settle.[187] We do not know if parties represented by a lawyer would be more inclined to settle, although there are indications that this may be the case.[188]

The 2008 Study on the Experiences of Abused Women, commissioned by Luke’s Place, showed that 48% of the women sampled found that there were not enough services and resources in the family justice system, although the survey showed they had accessed many legal services and were very satisfied with these.[189] The women had difficulties with paperwork, understanding the procedure, court/staff responses, knowing what evidence to submit and how to act in court, and dealing with their ex-partner and/or his lawyer.[190]

A 2011 survey among 325 family lawyers, conducted by Bala and Birnbaum, found that, according to lawyers who responded, unrepresented litigants routinely turn to the lawyer representing the other disputant for information and advice. Unrepresented litigants were also said to “have no clue what evidence will help them”. The lawyers indicated that reaching an out-of-court settlement is more difficult when one of the disputants in a family dispute is unrepresented. This is, according to lawyers, because unrepresented parties tend to have unrealistic expectations.[191] Bala and Birnbaum intend to conduct a survey among unrepresented litigants themselves.[192]

These reports all show that, despite very different situations for users, across the system there are significant concerns about access to justice for unrepresented litigants.[193]

3.     Legal Assistance, Short of Full Representation by a Lawyer

Unbundled Legal Services (“Limited Scope Retainer”)

One response to the cost of legal services has been to “unbundle” a lawyer’s services. With unbundled legal services (or “limited scope retainers”), litigants who cannot afford full representation would be able to obtain assistance from a private lawyer on a specific aspect of his or her case and pay only for that limited help. For example, a lawyer may be hired for the limited purpose of giving initial legal advice or drafting an agreement or assisting with the preparation of materials or appearing in court, while the client fills in forms or attends mediation without legal assistance.

There is no question that unbundled services will be provided to clients at an increasing rate and should be considered a form of legal representation. There are some caveats. The Supreme Court of Canada case R. v. Neil[194] suggests that “once a lawyer assumes any role in representing a client, she has carriage of all aspects of the client’s case”[195] and until recently, the Law Society of Upper Canada’s Rules of Professional Conduct[196] provided the same. Nevertheless, unbundled legal services have become more common, and the Law Society has amended the Rules of Professional Conduct to address the concerns raised by unbundled services, including competence, quality and communication.[197] Convocation also amended the Rules with respect to limited scope retainers regarding paralegals[198]; however, paralegals are currently not allowed to provide family law services.[199]

One concern about the unbundling of legal services is that individuals may not be able to make sound decisions about which services to obtain on a piecemeal basis.[200] Other concerns are that limitation periods will be missed and critical litigation elements will be overlooked by the lawyer and the client.[201] Unbundling is, therefore, most likely to benefit persons in less complex or lower conflict cases, and persons with the legal literacy and the confidence to manage their file. For example, one family lawyer mentioned that clients need background information so that the advice is “contextualized”.[202]

We note that unbundling can take different forms: a client may seek out more than one lawyer for different aspects of the case or a client would not have access to the lawyer throughout the case, but might nevertheless return to the same lawyer when needing assistance. Where continuity of a lawyer’s services is possible, this alleviates some of the problems associated with unbundling. Where this is not possible, unbundling could mean that disputants have to tell their story over and over to various service providers. Furthermore, different lawyers might have different views on how to handle various aspects of the case. A divided responsibility for parts of the file would thus reinforce the sense that no one person really has the whole picture.

LAWPRO, Ontario’s legal profession insurer has recognized that unbundling occurs and will continue to occur, but expresses concern that it has led to instances of malpractice: “the root causes of the most common malpractice errors that LAWPRO sees are at least equally, if not more likely, to occur during the provision of unbundled legal services.”[203] LAWPRO explains,

One of LAWPRO’s biggest concerns is that lawyers who limit the scope of their representation may nonetheless be held accountable for failing to warn the client of material legal issues or claims, even though they were not part of the limited scope representation agreement. Courts in the U.S. have held lawyers liable for malpractice in this circumstance.[204] (emphasis in original)

Paralegals 

In certain areas of law other than family law, paralegals may be an effective and less costly alternative to a lawyer. Paralegals and other non-lawyers offering legal services are not allowed to represent parties in family matters, however. In 2007, the Law Society Act made the Law Society of Upper Canada the regulator of paralegals in Ontario.[205] At that time, paralegals were prevented from acting in certain areas of law in which they had acted before they were regulated. A Law Society report in 2000 explained that family law is too “complex” and that there is a high level of risk to family disputants.[206] A subsequent report suggested that paralegals could engage in some family law issues and that instead of accepting that family law was “complex”, efforts should be made to make it less complex.[207] The by-laws enacted by the Law Society specify the scope of paralegal activities and currently exclude family law matters.[208]

Legal Aid Services 

Basic legal information and summary advice to low income persons is provided by Legal Aid Ontario’s advice lawyers who are based at the Family Law Information Centers at the family courts. Duty counsel can also provide summary advice. Court locations where separate Family Law Service Centres or Duty Counsel Offices (DCOs)[209] are established, can offer advice and assistance through staff lawyers and, where demand warrants this, administrative and paralegal support.[210]

Eligibility criteria for advice lawyers and duty counsels range between an annual gross income of $18,000 for a single person to $43,000 for a family of five or more, the same criteria as for Legal Aid’s Client Service Centre’s telephone advice.[211]

Duty counsel provided through Legal Aid Ontario can provide (limited) advice with respect to a disputant’s legal rights and obligations; prepare or review consents and minutes of settlement; review court documents and assist in preparing court documents such as motions, affidavits and financial statements; make referrals to other sources of assistance, such as on-site or off-site mediation, Legal Aid or a privately retained counsel.[212] Duty counsel can further help negotiate and settle and can “provide assistance in the courtroom with child protection hearings, garnishment and support hearings, requesting adjournments, arguing motions and hearings for issues such as custody, access, or support where the issues are not complicated”.[213] Duty counsel cannot, however, provide representation in trials.

Duty counsel services in relation to access, custody and support are limited to services which are likely to take less than 20 minutes to complete:

  • Representation and advocacy in negotiations to determine if a consent resolution is possible;
  • Preparation and/or review of minutes of settlement with the client, along with the presentation of the minutes to the court;
  • Representation on a motion, a case conference or settlement conference[214]

Because of these limitations “[i]n complex and hotly disputed matters it should be clear in the client’s mind that duty counsel or the advice lawyer cannot replace the client’s own counsel.”[215]

It should be noted that Legal Aid, albeit with limited funding, has made efforts to invest in the provision of legal services in the area of family law. This is done under the third pillar of the 2010-2011 family law reforms, “facilitating greater access to legal information, advice and alternative dispute resolution processes”. The efforts include increased access to duty counsel in the Ontario Courts of Justice and the Superior Courts of Justice. There are six new Family Law Service Centers (FLSCs) in Toronto, North York, Brampton, Newmarket, Chatham and Sarnia. The FLSCs are a “one stop shop”, which help with documents, referrals to advice counsel, full representation, referral to a private lawyer who does legal aid work, mediation and settlement conferences and referrals to social service agencies. Mediation is available at several locations, and is available if at least one of the disputants is eligible for legal aid. Furthermore, there are pilots in Milton and Brampton involving a triage system to match eligible clients’ needs.[216]

The FLSCs are located at the courts as are the FLICs. The FLSC offers services for persons who are financially eligible for Legal Aid Ontario’s services, while the FLICs offer services for all users. In practice the FLICs will be the point of entry for Legal Aid services, and will refer clients to the FLSC.

In some locations in Ontario there are multi-disciplinary “one stop shop” services which consist of teams of workers who each bring their own expertise in family matters. Users may access these services directly or they may be referred to these (specialized) services by other entry points.[217] Where multi-disciplinary services exist, this greatly facilitates the referrals of other entry points. The services can combine the various entry points of the wider family justice system, for example through medical and community family services. The services may also include legal services or have close connections with family legal service providers. At the entry point of these multi-disciplinary centres a family situation will be assessed and users will be triaged to the services within the “one stop shop” or directed to services which are not available here.

4.     Multi-disciplinary Centres

Multi-disciplinary services often assist persons with serious multiple problems, including domestic violence, substance abuse and mental health problems. As mentioned above, family breakdown is a main trigger for many other problems.[218] In addition, there are emotional problems which may need extra services,[219] often simultaneous to the formal dispute resolution process. Some commentators and workers consider that holistic and integrated approaches can solve problems for families with multiple challenges in a better way and can prevent problems from escalating. Currie recommends assistance as early as possible for family problems and a holistic approach to address multiple legal aid and support needs.[220] During the LCO’s consultations, participants commented that holistic service models were more attractive than single focus services. One advantage was that a one-stop-shop approach was suggested in order to avoid victims of domestic violence having to tell their stories more than once.[221]

Jacobs and Jacobs describe some local and regional practices of multi-disciplinary services in Ontario. The services can focus on different aspects of people’s problems: a domestic violence focus,[222] a mental health focus,[223] a health focus[224] and a family focus.[225] Multi-disciplinary approaches are most common for victims of domestic violence, such as the Family Violence Project of Waterloo Region,[226] the Durham Region’s Intimate-Relationship Violence Empowerment Network (DRIVEN)[227] and the Barbra Schlifer Commemorative Clinic.[228] Recently, a multi-disciplinary Family Justice Centre opened in the Peel Region.[229] The organizations have different approaches, but share a more multi-disciplinary approach and cooperation with other organizations, including community organizations.

Apart from being a “one stop shop”, reducing the number of referrals, multi-disciplinary services can be a liaison in contact with other organizations and the formal family justice system, and a (regional) centre of expertise, public education and awareness. For example, the Barbra Schlifer Commemorative Clinic is funded for specialized legal services, offers counseling services in several languages, interpreter services for non-English speaking immigrant and refugee women, and is a liaison with shelters, community centres, health services, legal services and housing services. The Clinic offers legal services in family, immigration and criminal law and offers public education and professional development workshops.[230]

The “one stop shop” can offer various degrees of legal services. Jacobs and Jacobs noted that the integration of (low-level) legal services in the multi-disciplinary centres for families in Ontario varied. For example, the Hincks-Dellcrest Centre, which assists 8,000 children and their families on mental health issues, mostly refers to community legal clinics. This centre indicated that legal services should not be integrated in their services, because of the adversarial nature of the legal process.[231] Although the legal services in the other centres in the study by Jacobs and Jacobs were limited, it was clear that the legal services were in high demand.

There are some challenges with respect to multi-disciplinary service delivery teams. Jacobs and Jacobs describe such teams as consisting of different professionals with distinct skill sets which provide services holistically, and in one physical location, whilst respecting professional boundaries and roles.[232] The teams can consist of physicians, nurses, teachers, social workers, lawyers, early childhood educators and family mediators who work collaboratively in teams focus on multidimensional needs.[233]

 A very practical challenge of a multi-disciplinary team is related to continuity of funding, as services can be funded under different programs and by different levels of government or different organizations.[234] Other challenges can be related to professional attitudes. There are for example differences in “legal cultures versus caring professions”.[235] Jacobs and Jacobs mention the differing perspectives and priorities of professionals in general[236] and stereotyping among professionals.[237]

Holistic service models bring together professions with different professional rules of conduct and codes of ethics.[238] Within the limits of the rules pertaining to the profession, workers need to agree on methods and exchange of information. In some cases this can be done through consent forms. Jacobs and Jacobs point out that there are few rules about working in a multi-disciplinary team providing family services.[239] The Law Society of Upper Canada, while acknowledging the potential value of multi-disciplinary clinics that provide legal, social and health services under one roof,[240] has required that “[a] lawyer in a multi-discipline practice shall ensure that non-licensee partners and associates comply with these Rules [the Rules of Professional Conduct] and all ethical principles that govern a lawyer in the discharge of his or her professional obligations”.[241] With regard to confidentiality, privacy and the duty to report there is “a complex web of obligations”.[242] We add that legal services in multi-disciplinary teams must avoid a conflict of interest in family disputes and that this can mean that only one person can receive independent legal advice or legal representation, while the other disputant may have to be referred to other legal service providers.[243]

There are also challenges with respect to the continuity of services, privacy and anonymity of community based solutions. For example, parents, youths and children who were involved in the establishment of the Dutch multi-disciplinary municipal entry points of family services, the “Centres for Youth and Family”, indicated in one location that they wanted a low threshold organization, access to one trusted person and an office which could also answer small questions. In another location youths between 14 and 17 indicated that they wanted anonymity when entering the building, no waiting rooms (so that they would not be seen by others) and strict confidentiality of the information they gave.[244]

5.     How Levels of Conflict, Domestic Violence and “Complexity” Affect Moving Through the System 

While early information, financial factors and local availability of services can play an important role in how people enter the family justice system and the choices they can make, a person’s pathway in the family justice system is often influenced by the level of conflict, risks of domestic violence and the complexity of the issue. Here the “choice” of the individual with respect to a dispute resolution method is met with the system’s limited availability of resources and the need to give access to “appropriate” and “proportional” services in order to achieve access to justice for all users.  It is important that entry points can provide opportunities to identify issues and direct parties to appropriate and proportional services, as is the objective of the second pillar of the 2010-2011 family justice reforms.

Triage and Referrals

Triage, the medical term used to describe the process of assessing patients for the severity of their injuries or illnesses and the availability of treatment and other resources and the prioritizing of patients on the basis of the two, has migrated to the legal context. In the legal context, it means assessing the needs of different families and prioritizing their access to the legal system or determining the approaches that would best respond to their needs. For example, high conflict cases – defined as couples who are unable to reach agreement or where there is domestic violence – will be given priority. Assessments and triage can occur at very early stages of the process and can occur throughout the process to ensure that disputants who have the greatest need to access resources or a particular approach to resolving their problems are able to do so. Within the court system itself, triage may be referred to as “case management”.

A main focus of the 2010-2011 family justice reforms is to direct users in a lower conflict to non-judicial dispute resolution. This dispute resolution is considered less adversarial, more affordable and speedier.[245] A result of this focus would be that specialist resources, mostly at the courts, are freed for high conflict families and other complex cases.

Other than case management at the courts, which we describe later, the Ontario family justice system currently does not contain a clear triage function which directs users to the most appropriate method of resolving their disputes, whether the courts or otherwise, or to multi-disciplinary services that might help resolve non-legal problems. There are, however, some triage functions:

  • In LAO’s,  “a legal aid triage” function is performed by staff lawyers. This function may be further developed.
  • The strengthened advice function of the IRC at the FLIC can be seen as a form of voluntary triage.

In the absence of a clear triage function before users access the court process, the Ontario family justice system leaves disputants a choice with respect to the general method to resolve their dispute. However, by not facilitating and subsidizing certain approaches which require a more extensive involvement of professionals such as mediators, mental health experts and (legal aid) lawyers the choices of many low and middle income users are limited.  Within the formal family justice system the most affordable pathways for many users are eight hours of subsidized mediation and the court process with self-representation.[246] For many low and middle income persons in higher conflict the latter may be the only option within the formal system.

In practice, workers in the system must constantly assess the level of conflict and, based on their experience and expertise, decide between de-escalating conflict and promoting co-operation or using more coercive measures. For example, experienced family lawyers who participated in the Law Commission of Ontario’s consultations indicated that they performed a “triage” with respect to the level of conflict to respond to cases which could be particularly demanding or needed urgent action.[247]

We note that private lawyers can play an important advisory role for their clients. Those who contact lawyers are generally satisfied by the information and advice given by lawyers.[248] Workers in the family justice system, however, fear that lawyers as a point of entry may direct users to a more legal and adversarial approach. They may thus focus on legal solutions and be less inclined to refer to mediation[249] or other family services.[250]  This will of course depend on the lawyer[251] and also on the effectiveness of the information and general advice from organizations providing information and advice at earlier stages of the process. When cases are highly disputed, it is likely that lawyers will rely on the court process rather than non-judicial dispute resolution [252]

At some point, whether with adequate information or not, an individual in a high conflict situation, a victim of domestic violence or an individual with problems of a more general legal character may require more specific assistance from experts outside the family law system. There may, however, be insufficient interaction between lawyers and other professionals who may be able to address or at least appreciate the role of non-legal problems facing family disputants. During the LCO’s consultations, one organization commented that “legal professionals do not perceive information dissemination and referrals as part of their job”.[253] Experiences in the UK confirm that lawyers as a point of entry do not necessarily direct parties to wider support services, and “few referrals were made to services other than mediation or services offering help relating to domestic violence”.[254]

In the current family justice system there are some specific functions and instruments for referrals to wider family services. Information and Referral Coordinators at the Family Law Information Centres have a specific mandate to refer individuals to community services. Experienced staff lawyers at LAO’s new FLSCs are also expected to refer individuals to social services. While these referrals will often take place at entry points and in the early stages of a family dispute, an individual’s need to access social services or counseling may also be established at a later stage.  For example, in the court process judges can order an individual to seek counseling.

While the formal family justice system does have mechanisms for referrals to legal and non-legal family services, the continuity of services nevertheless often suffers from “silos” and the fragmentation of services:

  • Because of the division of subsidized family legal services at the court house and other legal services provided by legal clinics and pro bono services, individuals may have to access various offices for legal advice.[255]
  • Wider family services in Ontario are often fragmented and can be hard to access.[256]
  • People with mental health issues or addiction problems often have to deal with a myriad of services.[257]

This can lead to numerous referrals to specialist institutions or to a silo approach, which can leave many problems unresolved.[258]

Persons in lower conflict 

Although there are few data available, it is likely that many separating couples try to seek an agreement without using a third party such as a mediator or a judge to resolve issues. Research in the UK, for example, shows that 55% of parents reached a parenting agreement out of court. Only around one in ten children had a contact arrangement ordered by the courts. However, about 30% of couples did not seek an agreement or resolution at all, including parents who walked away.[259] One study indicated that the out of court settlements were largely (between 75% and 85%) arranged informally. Only for about one in fifteen children agreements were negotiated by mediators or lawyers.[260] We do not know if these figures would apply in Ontario. One 2007 study stated that 60% of child support payments in Canada were based on an agreement.[261] It is not clear how these agreements were concluded.

High Conflict Cases

It is likely that many persons in a higher conflict or in situations where legal aspects are disputed, seek a lawyer’s advice. While lawyers are probably the main brokers and advisors for negotiated agreements between individuals, it is less clear how lawyers advise their clients who cannot immediately agree on matters.

Although a relatively small group, high conflict families can “take up a disproportionate amount of professional and court time”.[262] It is not always clear how the term “high conflict” is being used. Bala and Birnbaum point out that high conflict is an umbrella term, which encompasses situations in which there are:

  • high rates of litigation and re-litigation;
  • high degrees of anger and distrust, and difficulties with communicating about the children;
  • serious domestic violence issues; and/or
  • an alienation of the child as a result of the conduct or attitude of one parent.[263]

There is no clear-cut response for high conflict cases. Bala and Birnbaum conclude from social science literature that high conflict needs and responses need to be more clearly differentiated. “Conflict that is driven by a genuine desire by both parents to continue a significant and regular parent-child relationship post separation, versus conflict that is characterized by physical and other controlling strategies, can lead to very different custody and access interventions and parenting recommendations/decisions.”[264]

In high conflict cases it is often one or both of the parents who behave in an unreasonable and antagonistic way. Abusive behavior and personality disorders can play a role.[265] Some commentators believe that clients generally listen to lawyers and that lawyers can play an important educative role and curtail harmful parental conduct.[266] In more serious situations early cooperation between lawyers and mental health professionals may sometimes avoid judicial intervention completely, to every one’s benefit.[267] It is likely that some lawyers play an educative role in a case and try to de-escalate conflict and manage their client’s expectations. This is, however, complex in every day practice.[268] A UK study mentions that solicitors appear to accord little importance to discussing issues with their clients such as counseling, health/mental health services and supporting children.[269]

We note that not all situations in which there is a conflict or legal dispute, is there a high conflict as described by Bala and Birnbaum. An important question is if, and to what extent,  cases of “higher conflict” need the intervention of judges and other professionals in a court process, and what can be done, either in or outside the court process, to prevent these disputes from becoming very high conflicts.

As explained above, family law disputants will normally receive information on non-judicial forms of dispute resolution, often from various sources. These will explain about the disadvantages of the court system for those who can be expected to settle out of court.[270] For example, according to Legal Aid Ontario’s Family Law Information Program the court process is “time-consuming, expensive, stressful and emotionally draining” and parties have “a limited control over the outcome”.[271] However, public sources will also point out that non-judicial dispute resolution is not the most suitable method in situations of high conflict, domestic violence and in situations in which one partner is more dominant.[272] This does not mean that all private sources convey the same message. One Ontario website said that research shows that victims of spousal violence felt better able to stand up for themselves in mediation.[273]

With or without a lawyer’s advice, disputants who cannot agree on matters can decide to seek non-judicial dispute resolution or to access the court system. Empirical research on disputants’ reasons for choosing a particular form of dispute resolution is lacking, particularly for disputants selecting a method other than the court process (that is, selecting voluntarily court-annexed or off-site mediation or methods outside the court system entirely, including negotiation and “collaborative law”, for example). Choices may be influenced by (expected) lower costs compared to the court system. Public information sources, whether on-line, written or disseminated in other ways, may also influence choices. Information and Referral Coordinators at the FLICs, for example, have a mandate to refer parties to dispute resolution services available in their community, including off-site mediation. The Mamo Report, which described the Family Courts before the extension of the FLICS to more court houses, showed, however, that most persons in the sample had accessed the subsidized mediation connected to the family courts without being referred to this by court staff or judges[274] or by lawyers (only 20% to 40% of mediated cases followed a lawyer referral).[275] The majority of these mediated cases concerned access, custody and child support.

Many high conflict situations will result in a court process, although not necessarily in a trial. Because it is not entirely clear what defines a high conflict case, it is difficult to say how many of these cases are in the court system. Bala notes that a minority of all cases (between 2% to 5%) are so “high conflict” that they result in full trials.[276] However, the number of cases which can become high conflict is probably higher. For example, The Mamo Report stated that domestic violence was reported in 14% of cases before the family courts.[277] The percentage of people who are estimated to be victims of partner violence after a separation and divorce is 17%.[278] Although a high conflict situation and a situation of domestic violence are not necessarily the same, the high number of cases with allegations of violence indicates that in a significant number there are personal safety risks and the divorce and separation process can be very acrimonious.

As in other jurisdictions, the Ontario family justice system faces challenges when dealing with high conflict cases. At the court level the use of more coercive court orders and directing users to (subsidized) non-judicial methods (such as counseling) may require significant “case management” resources, additional family services and expertise. The amended family law rules make it clear that a dispute can go straight to a trial after one conference.[279] This may give judges the opportunity to refer high conflict families who are not likely to settle to a trial.

The court process itself can become a platform for continued conflict and may be manipulated by litigants.[280] During the Law Commission of Ontario’s consultations it was noted that the legal process can “reinforce legal bullying by providing litigants with tools to perpetuate their behaviour”.[281] Some participants found that judges did not always respond adequately to legal bullies. Judges mentioned several measures they could use, such as imposing costs, compelling compliance with orders through contempt orders or temporary orders, and issuing orders that limit further motions/conferences, shutting down vexatious litigants, enforcing time limits, and fixing trial dates that cannot be adjourned. However, one judge also mentioned the dilemma that imposing costs and striking pleadings could mean that a decision is not on the merits and the outcome possibly not in the best interests of the child or a party.[282]

For high conflict families in Ontario there are specific resources, such as the Office of the Children’s Lawyer and the Supervised Access programs. In some cases higher conflict families may also be successfully directed to specific multi-disciplinary out of court solutions.[283]

Particularly in high conflict cases legal representation by an experienced family lawyer can provide the “degree of objectivity required by advocacy in court”[284] and alleviate the burden on the system caused by unrepresented litigants in a very emotional context.[285] As noted above, however, high legal fees can be an obstacle for representation and unrepresented litigation may complicate the case management and resolution of high conflict situations. For low and middle income parents in children’s cases there are further constraints because of the costs of parenting capacity assessors and parenting coordination.[286]

Domestic Violence

High conflict cases may be characterized by the presence of domestic violence, although this is not always the case. There are significant resources for victims of domestic violence in the Ontario family justice system. These have been strengthened by a new Court Support Workers Program in 2011.[287] The situation of victims of domestic violence, who do not self-identify as victims of domestic violence, remains a particular concern, however.  Victims may not report domestic violence out of shame, fear or because they do not recognize that they have been subjected to domestic violence. The system has to reach out to persons, give sufficient access to resources, and have screening-mechanisms and trained staff who can recognize signs of domestic violence.

Victims and their children, if any, may need shelter services and will in many cases need advice on safety plans. In Ontario there are many shelter organizations and community organizations that offer services to victims of domestic violence.[288] Although services are available for men and women, there are specific services for women and a specific Men’s Project.[289] Despite the existence of shelter organizations it can sometimes be hard to accommodate the needs of persons who face multiple issues: for example, women, experiencing abuse are at risk if they are isolated from support systems and services because of language and cultural barriers.[290]

When victims of domestic violence access the formal family justice system, it is usually through the courts. In many cases this is a criminal court. In family cases some persons may choose a dispute resolution method other than through the court system. For some users such methods may give a sustainable outcome. In general, however, more cooperative methods for dispute resolution are less suitable and the court process will be chosen by most victims. The court system has specific procedures for victims of domestic violence. The Mamo Report showed that

Overall, references to domestic violence were recorded and documented in 14% of all files reviewed (63 cases). In 11% of these 63 cases, a request for a restraining order was made. The majority of the files with references to domestic violence were fast track files (70%). In 98% of the files related to domestic violence and restraining orders, females were the applicants with a median income of approximately $21,000 (range $0–62,000). Moreover, children were involved in 84% of these cases.[291]

This information shows that in family law proceedings involving domestic violence, women are the main group of applicants.[292] The use of the courts’ fast track processes shows that domestic violence is a priority.

Legal Aid Ontario has also made domestic violence a priority. For example, the LAO website directs users to the Assaulted Women’s Help-line, to LAO’s toll-free number and to the Family Law Service Centers at six locations.[293] According to its website Legal Aid Ontario services extend to all victims of domestic violence, regardless of immigration status in Canada. Free telephone interpretation services for non-English or non-French speaking applicants are also available.[294]

Legal Aid Ontario’s coverage extends to all contested issues and changes (variations) to existing family court orders. However, Legal Aid Ontario’s financial eligibility criteria continue to apply. This means that, depending on income situations, low and middle income persons who are victims of domestic violence or accused of domestic violence, may have to deal with an “asymmetrical” process in which disputants in a family dispute have access to different forms of legal representation or legal assistance short of full representation. In some cases both disputants may be unrepresented.

Most recently, in the fall of 2011, the Ministry of the Attorney General has started a Family Court Support Worker Program,[295] to train community organization staff to provide support and assistance to victims of domestic violence who are going through the family court system.[296] The Program will operate in all judicial districts in Ontario. The Program aims to assist victims during the court process through the following services:

  • Provide victims with information about the family court process;
  • Document the history of abuse for the court;
  • Refer victims to specialized services and supports in the community;
  • Help with safety planning related to court appearances; and
  • Accompany victims to court proceedings, where appropriate. [297]

Despite the new measures to support victims of domestic violence, the family law process can be difficult for victims of domestic violence, in particular those who cannot afford full representation and/or victims who deal with an unrepresented ex-partner or ex-spouse.

The combination of criminal procedures and family law procedures can make the process even more complex. The pilot Integrated Domestic Violence Court (IDV Court) of the Ontario Court of Justice in Toronto aims at aligning criminal and family law processes, bail conditions and access and custody issues.[298] It opened in June 2011 and had its first sessions in July 2011.[299] Disputants can fill out a consent form to bring a case before the Court. One judge presides and deals with custody, access, child and spousal support and restraining orders. In criminal cases the court will hear bail variation applications and can conduct pre-trial meetings and guilty pleas.[300] In family cases, the IDV Court will conduct conferences, make temporary orders where appropriate, and make final orders on consent of the parties. The Ontario Court of Justice lists a number of advantages, including the consistency between family and criminal court because one judge will hear the issues, and a reduction of delays in hearing the family and criminal matters. In addition, the IDV Court has a community resource coordinator connected with the Court to refer litigants to community support and services.[301]

6.     Forms of Dispute Resolution

Judicial dispute resolution (that is, through the courts) will be considered in the next section. Here we briefly set out the availability of other forms of dispute resolution, particularly mediation outside the court system.

Non-Judicial Forms of Dispute Resolution

Dispute resolution methods other than through the court system can take many forms from informal dispute resolution, perhaps by religious organizations,[302] to sophisticated methods involving experts, such as collaborative law, parenting coordination, arbitration and med/arb (mediation and arbitration).

Some family law disputants will choose negotiation or mediation rather than going to court, or as a precursor to going to court, or their own community’s method of resolving disputes. These methods may be outside the formal system (and the results will be enforceable only through any agreements reached by the parties in the same way as enforcement of contracts). Disputants may also choose to resolve their dispute through formal arbitration under the Arbitration Act, 1991[303] and the Family Law Act, 2006.[304] Notably, an agreement or award in an arbitration based on specific religious practices (rather than the law of Ontario) is not enforceable.[305]

The costs and quality of non-judicial dispute resolution can vary and there is little research or information on either. In some cases costs can be significant, especially when several experts and lawyers are involved. Mediation which aims to have a “transformative effect” to help establish a constructive parenting arrangement can be relatively resource intensive.[306] This means that mediation or other forms of non-judicial dispute resolution are not necessarily a significantly cheaper alternative to the courts. This can be a disappointment for users.[307]

As previously mentioned, in Ontario there is free and low-cost mediation connected to the courts, expanded to all courts by summer 2011. This subsidized mediation can also be accessed before any court file begins. At the family courts on-site mediation for less complex cases is free. For off-site mediation, which occurs in the mediator’s office, there are eight hours of subsidized mediation, including intake. In practice, there may be some flexibility, as long as sufficient progress is made. A fee scale applies to the off-site mediation service.[308] This means that parties pay for the subsidized mediation according to income and number of dependants. The client’s contribution begins at $5.00 per hour for persons with low incomes.[309]

The providers of subsidized mediation services connected to the courts have to comply with the professional standards for family mediation.[310] In Ontario there are two organizations which provide standards for mediation: the Ontario Association for Family Mediation (OAFM) and the ADR Institute of Ontario.[311] In addition, there is Family Mediation Canada.[312] Despite the professional standards required, there are concerns that the funding for subsidized court connected mediation is not sufficient to attract the most qualified mediator. The Mamo Report found that in some cases judges did not have faith in the mediator and did not refer parties to mediation.[313]  The LCO noted that although consultation participants mentioned that there are many competent mediators in Ontario, the expertise and qualifications of mediators were sometimes questioned. Participants thought that other regulated professions had stricter codes of conduct.[314]

In the broader context of North America, Salem notes concerns that court-connected mediators are often struggling with case-loads,[315] that cases referred to mediation have become increasingly complex,[316] and that mediators are pressured to reach settlements. Thus in some cases mediation does not give disputants an opportunity for airing concerns.[317] It is not clear whether these concerns also apply in the context of court-connected mediation in Ontario. For example, in US jurisdictions the number of subsidized hours can be two or three hours,[318] as opposed to the eight hours for subsidized off-site mediation in Ontario. We note that some organizations in Ontario have proposed a higher number of subsidized hours for off-site court mediation.[319] It is, however, likely that eight hours of mediation are sufficient for a significant number of low conflict cases to reach at least a partial agreement for specific aspects in a case. For more complex cases mediation may not be the suitable dispute resolution.

Even if the emphasis on mediation in information and advice practices is a “good thing”, the focus on mediation may have certain risks if the court process itself is considered unaffordable or intimidating. For some, the promotion of mediation in information and summary advice can be seen as an “insistence” for users not to go to the court. Chief Justice of Ontario Winkler noted, in the context of the court process, that:

The greatest service that trial courts can provide to assist parties in mediating their disputes is to ensure: first, that judges are available to try the case if the mediation fails; and second, that trials are conducted in a way that makes them as affordable as possible. No party should be forced to take an unfair settlement at mediation simply because the opponent will be able to grind him, her or it down and drag the case out.[320]

Community advocates in Ontario are concerned that victims of domestic violence can be coerced into mediation although this is not the appropriate method.[321] Some community advocates also fear that the mediator may miss the history of violence in the initial screening or may wrongly feel that he/she created enough safeguards in the mediation process.[322]

Practitioners of non-judicial dispute resolution are, however, expected to be vigilant with respect to abuse and other issues related to power and intimidation, and are supposed to screen cases. The Ministry of the Attorney General’s website refers to a number of screening tools for arbitrators.[323] It takes time and experience to identify the existence of domestic abuse in many instances and it is therefore riskier for more junior mediators to consider these cases without assistance.[324] Mediators must also be sensitive to diversity issues, not only in relation to domestic violence cases, but including them.[325] Family arbitrators must also be trained according to the OAFM’s Policy on Abuse, including training on the use of one of the screening tools.[326] They are required to abide by particular practices, such as having the parties obtain independent legal advice.[327]

Non-judicial dispute resolution is often led by non-lawyers. One concern is that they may fail to address legal questions, which can disadvantage the disputants. Another concern is that when important legal questions are resolved in a process that is confidential and does not create precedents, the outcomes may, in hindsight, lack transparency for parties.

Judicial Dispute Resolution: The Court System

Although the court system may be more or less the first point of entry for some litigants, most will not reach the courts until they have tried other methods such as negotiation or mediation. When those methods fail, court may be the only option. There are processes at the court level that are designed to encourage settlement before a more intensive intervention by a judge or to reduce the issues that will have to be addressed by a judge. These are to be understood as part of the court system and not extraneous to it. In some cases the full authority and powers of a judge are needed to resolve a case through a trial. It should be noted that only relatively few cases result in a trial, however.

A complication of the family justice system in Ontario is that there are three different courts addressing the consequences of a family break-up: the Superior Court of Justice, the Ontario Court of Justice and the Superior Court of Justice Family Court (also known as the Unified Family Court [UFC]). Depending on the place of residence of the parties and on their legal issues, parties can access either the UFC with specific services or one or both of the other courts.

The UFCs, which started as a pilot in 1977 and were expanded in 1995 and 1999, were established to deal with family law in an integrated manner. With each expansion of UFCs, the province implemented services including on and off-site mediation, information and referral coordinators and voluntary parent information sessions at the UFC locations.[328]  In 2011, these services were extended to all courts that hear family matters.  The parent information session was replaced with the Mandatory Information Program.

There are currently 17 Unified Family Courts in Ontario. Since 1998, as the Family Court, they are a branch of the Superior Court of Justice and have jurisdiction over provincial and federal legislation. Because UFCs have not been expanded beyond the 17 locations, not all Ontarians can access these courts and their services.[329]

In other locations parties will have to access the Ontario Court of Justice or the Superior Court of Justice. The Ontario Court of Justice has jurisdiction over child protection, adoption, custody, access, and child and spousal support, but does not have jurisdiction over divorce or property matters. The Superior Court of Justice has jurisdiction over divorce, property, custody, access and support, but does not have jurisdiction over child protection and adoption.

The five year trends in the 2009-2010 Annual Report of the Court Services Division show that between 2005 and 2010 in all Ontario courts combined there were annually about 75,000 new family proceedings other than child protection proceedings.[330] Of all family cases in Canadian courts, about 70% are divorce and other family breakdown cases. The remaining 30% involve adoption, child protection, civil protection, guardianship and other family matters. [331] According to its bi-annual report 2006-2007 almost two thirds of all family matters in the Ontario Court of Justice are custody, access and support matters.[332]

The court process can be slow. According to Listening to Ontarians, four in ten people (44%) with a family relationship problem had not resolved their problem within three years.[333]

In Ontario, of 107,822 active divorce and other family breakdown cases in 2009/2010:

  • 57,072 were in the system for one year or less;
  • 33,646  between one and two years;
  • 8,990 between two and three years;
  • 3,763 between three and four years; and
  • 4,351 four years or longer.[334]

This means that at least about 50% of all cases remain in the system for more than one year or (considerably) longer. This can be related to, for example, the emotional aspects of a case, but also to the capacity of the courts.

Custody, access and support are not only the most litigated matters at the Family Courts in Canada (and Ontario), they are also the matters which tend to remain longer in the family justice system. Cases involving children took more than one year.[335] Cases involving child access and child and/or spousal support arrangements were shown to have the highest proportion of cases remaining in the system.[336] Of access and support issues, access was the most contested issue.[337]

Lengthy cases are likely to involve more than one or even two judges (and in some cases many judges), leading to extra costs for litigants and the family justice system,[338] both in money and time, and greater frustration as litigants themselves or through their lawyers explain their cases over and over again. Although by this stage parties are no longer at an “entry point”, it is appropriate to consider what might be done at the entry point to minimize financial cost, time and frustration.

The courts have initiated processes to help move cases through the system quickly. In some ways, this is the traditional “case management” process. For example, the Ottawa family case manager pilot project was initiated in response to The Family Court in Crisis.[339] It relies on the appointment of Family Case Managers; these are masters who have the jurisdiction to resolve procedural issues in the family court.[340] The program in Ottawa significantly reduced delays and increased the efficiency of using judicial resources.[341]

2005 (pre-pilot) 2009 (after 2 yrs of pilot)
Family
Case Conferences 11 weeks 4 weeks
Motions 10 weeks 4 weeks
Settlement Conferences 21 weeks 4 weeks
Trials 13 months 6 months

Resolution Officer, a meeting with a court-affiliated mediation service or a program offered through a community service.[342]

The strategic plan of the Superior Court of Justice has embraced the concept of case management or triage and contains ambitious goals. It says:

Access to justice means providing family court services and processes that are timely, efficient, effective and affordable. The purpose of these services and processes is to resolve family cases in ways that minimize conflict, safeguard the children’s best interests, protect the legal rights of all family members, and resolve the issues as early as possible.[343]

High conflict cases are to be identified as early as possible and managed by the same judge wherever possible.[344]

The Ontario Court of Justice’s Family Law Vision Statement and the Superior Court of Justice’s Strategic Plan contain ambitious goals to ensure effective and timely decision making. The SCJ’s Strategic Plan, for example, envisages a more structural revision based on the principles of accessibility and effectiveness.[345] With respect to accessibility it states that appropriate judicial resources and family court services should be available at all court locations, considering factors as population and geography. Court processes should further be understandable to all litigants, including the unrepresented, and should promote early, fair and expeditious resolutions. Effectiveness should be based on the principle that “[f]ront-end family court services and court processes should be designed to ensure that each court attendance is necessary, meaningful, timely, and as comprehensive as possible.”

C.     What We Know about Disputants Who Do Not Use the Court System

Although individuals will choose different ways of resolving their family disputes for many reasons, both wealthier and low income individuals may “opt out” of court processes, but for different reasons and with different consequences. Indeed, some commentators ask the question whether “high end” users are – increasingly – choosing to opt out of the family justice system in favour of private dispute resolution.[346]

Bala points out that for wealthier litigants, private mediation, arbitration and “med/arb” (a combination of mediation and arbitration) may be faster and more predictable and have the advantage of being more confidential than the court process.[347] One of the currently “high end” options for dispute resolution is collaborative family law, conducted by specially trained lawyers who are expected to ensure that their clients disclose all relevant information in a timely fashion, and must encourage them to settle the case.[348] In practice, after the initial meetings between each client and his/her respective lawyer, collaborative law generally proceeds through a series of “four-way” meetings including both clients and both lawyers.[349] In other cases, interdisciplinary collaborative teams may be assembled which can include mental health professionals who act as divorce coaches, a child specialist and a financial neutral.[350]

According to its proponents, collaborative family law provides an alternative to the adversarial model offered by litigation.[351] There are some concerns with respect to collaborative family law, which can be time-consuming and costly. Wiegers and Keet note that collaborative law’s “emphasis on familial welfare can also pressure weaker parties, typically mothers, to abandon legitimate claims to reduce conflict and obtain closure.”[352]

Low income users for whom the system is intimidating or not accessible may not enter the system at all, or leave the system without obtaining a decision. For example, the UK Family Justice Review indicated that a consequence of a proposal to reduce access to legal aid in the UK could be that “that some parents will simply not pursue their dispute leading to some children losing contact with a parent.”[353] This may be the case in Ontario, where the affordability of legal assistance is already limited. However, the lowest income Ontarians, those who are in receipt of social assistance, may have to enter the system to obtain a formal order of child support from the court as a condition of receiving assistance.

Some couples who find the system intimidating or cannot afford it, may seek community-based solutions, through religious or community organizations, for example. Although community-based solutions may provide sustainable and fair solutions, they may also be based on patriarchal traditions and perceived familial obligations. As previously mentioned, in practice this often disadvantages women.[354]

There are particular concerns about the effectiveness of the system for Aboriginal persons. While there are specific programs and dispute resolution methods for Aboriginal persons, they often face many obstacles in accessing the family justice system and its legal elements. Aboriginal peoples have long suffered from a disadvantaged position,[355] and people are overrepresented in certain areas of family law, in particular in relation to domestic violence and child welfare.[356]

Aboriginal persons have a specific position in family law. The Child and Family Services Act recognizes that a child’s culture is relevant to determining his or her best interests.[357] An additional purpose of the Act, in so far as it is consistent with the best interests of the child, is to recognize that:

Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family.[358]

Specific services for Aboriginal persons include the Native Court Worker Program for assistance of Aboriginal disputants in family cases.[359] The Program is funded by the Ministry of the Attorney General and the Federal government.[360] Furthermore, there are specific legal services for Aboriginal individuals, including in remote areas.[361]

Nevertheless, there are a number of issues in relation to Aboriginal people and the family justice system. These include:

  • The ability to physically access the system due to being located in remote areas;
  • educational and informational barriers or barriers resulting from language barriers;[362]
  • the extent to which legislation applies on reserve. For example, there is a legislation gap in relation to relationship property,[363] which generally disadvantages women;[364] and
  • the extent to which legislation that does apply recognizes the Aboriginal perspective.[365]

D.      The Importance of Entry Points

With this brief mapping of the stages and actors in the family justice system, we return to the beginning, the entry points which are the focus of this project.

In the early stages of a family breakdown there are various entry points for individuals who seek a solution for their challenges and problems. Individuals may access more than one entry point for information, advice and referrals. As mentioned earlier, there are many ways in which individuals can obtain information. Sources of information can be formal (through many public sources and paid specialist service providers) and informal (through family, friends, religious organizations and non-specialist service providers such as family doctors and teachers).  Both the preference of the individual and availability of services affect the entry point used. For example, in remote and rural areas, family lawyers are sometimes not available and courts may be hard to access.

Points of entry to the family justice system can play a crucial role in assisting people in how they negotiate the system. It is at this stage that people begin to gather information about the system and to make their decisions about how to handle the dispute. Actors at these early stages may:

  • Assist a person in deciding whether to proceed with a legal response to their problem or finding another avenue of redress;
  • Inform a person on the legal implications of a family breakdown;
  • Inform a person on the options to reach a legal solution for family law problems and family law challenges, and their advantages and disadvantages, including cost and time;
  • Inform a person about other family services (such as financial advice or counseling) available to him or her;
  • Make a person aware of the personal consequences of a family breakdown and of the relationship with the ex-partner – for example the level of conflict and the possibilities to establish a workable relationship in a separation or divorce;
  • Make a person aware of the consequences for children of family breakdown and parental conflict;
  • Make a first assessment of the family situation, including legal questions, the level of conflict and complications that can arise in a file;
  • Advise a person on the approach which is most suitable in light of the specific family situation, the financial resources and the services available;
  • Refer persons to the next level of services and make an intake file for service providers in the next stage of the “legal continuum” or, in multi-disciplinary services, for legal and non-legal service providers; and
  • Give advice about, or triage to services or pathways based on an assessment of the case and prioritization.

The points of entry can be divided on the basis of the extent to which they are connected to the formal system and to which they can meet entry point goals listed above.

As already indicated, for many people one of the first things they do when they notice a family problem or when another family member tells them there is a problem is talk to relatives – a consultation participant talked to her sister, for example – or friends. Research and consultations show that in particular persons with low incomes often relied on family and friends for information.[366]  These are people who usually have no connection, or no formal connection, with the legal system. They have little or no expert or broad-based knowledge about the system. Sometimes they may have had their own family problems, however, and the advice they give or the impression of the system they offer is based on their own experience. These actors can have an influence on the way individuals enter the formal system, and it is worth considering whether there is a way to link these first considerations about a person’s family problems with greater expertise.

The second type of entry point consists of persons in a professional capacity with the information necessary to be able to refer persons to family justice services. These include family doctors, family counselors, therapists, teachers, social workers, police officers, religious advisors and workers in the social assistance system. General telephone referral services, such as 211 Ontario,[367] can also be considered part of this group, although 211 Ontario also provides more general advice and referrals to specific community services, making it an important entry point to the inner circles of the family justice system.

A third entry point consists of a group of workers whose connection with the family legal system is more direct and frequent, consisting of “transitional” community workers, workers in band offices and workers in shelters who offer basic information and can be “a trusted intermediary” for vulnerable persons for whom the formal family justice system can be intimidating.  In Ontario’s pluralist context the trusted intermediaries can play a very significant role in the access to family justice for some individuals. They can, for example, assist persons with a disability, persons who do not have access to online services or have difficulties using telephone lines, persons with literacy problems, persons facing cultural barriers and persons who suffered traumatizing experiences. The newly created Family Court Support Workers are a formal recognition of this role. They can assist victims of domestic violence, and can be a link between the non-profit agencies which operate the program and other workers in the formal system. Thus, Court Support Workers are a bridge between users and their informal networks and the formal system.

At some point, an individual with a family problem is likely to seek more in-depth information. The information services, which may also be referral services, and which can be offered in written form, audio-video form, on-line, by telephone or in-person, are a main point of entry. The many entry points that exist for early legal information, summary non-legal advice and early legal advice were described above.

There are the entry points that not only can provide basic information and referrals, but can also assist in achieving a solution. In a sense these actors and services are hybrid, both entry points and points of resolution. As described above, they include:

  1. Community mediators, by which we mean non-certified persons who are asked to mediate in a family dispute.  These include religious workers or community leaders;
  2. Private lawyers (whether these are accessed directly, through the referral service of the Law Society of Upper Canada[368] or through Legal Aid Ontario);
  3. Certified providers of non-judicial dispute resolution;
  4. Legal Aid Ontario’s advice lawyers, duty counsels and duty counsel office staff for low income persons; and
  5. Clerks and judges at the courts, in particular for couples who directly enter the court process without attending a Mandatory Information Program.

At some point in the resolution of their family dispute individuals will be in contact with one or more of these service providers. The extent to which they are entry points will often depend on the (referral) information and advice their clients have received before.

We also discussed multi-disciplinary centres as entry points. They have the capacity to address the multi-faceted nature of family problems, or have the expertise to refer family members to more specialized services.

The central question in this report is how relevant entry points can assist individuals in resolving the problems they encounter.  In the next chapter we will describe how the family justice system and its entry points can respond to the challenges for its users and workers.

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