A.    Introduction

For a number of users, Ontario’s family justice system works. Lower conflict families who can reach a solution without extensive intervention may find the system responsive and effective. Those who can afford legal assistance may also find a timely solution, albeit at significant costs. Even victims of domestic violence and families with multiple problems who receive (multi-disciplinary) family services, legal services and personal support, may be able to resolve their problems effectively, although the legal system may have limited capacity to address other outstanding problems once it has completed its initial work. It should also be noted that unreasonable persons in very high conflict may even in the best resourced and designed family justice system not be satisfied with services, and this can negatively affect those participants who are reasonable.

Most proposals for reform assume that full legal representation in contested separations and divorces is, fiscally, not an option and/or is not necessary.  Directing users to out-of-court solutions, where possible, is a constant theme. We are also aware that considerable infusion of funding is not likely in today’s climate and we have therefore divided our recommendations into two types: those that should require little or no funding or would redirect funding from current aspects of the system to others that might be more effective (“short term” reforms) and those that we believe are necessary if the system is to be truly effective and able to respond to the diversity of family disputants (“transformational reforms”).

Although it is too soon to make an assessment of the impact of the 2010-2011 reforms, we can make some general observations.

The effectiveness of the system remains a concern. Ontario’s family justice system and Ontario’s family programs are hard to map, complex and fragmented for many reasons: these reasons include the split jurisdiction between the federal and provincial levels, a limited legal aid budget and a court process that has not been sufficiently revised and in which its actors often appear understaffed or under-resourced.

A main premise of the 2010-2011 family justice reforms is that more individuals in lower conflict can be directed to non-judicial dispute resolution or to settlement of disputed aspects early on in the court process. The impact of early information, the Mandatory Information Programs, the strengthened role of Information and Referral Coordinators, the role of Dispute Resolution Officers and the expansion of subsidized mediation will need to become clear in the near future. For example, lawyers familiar with the system do not think that the Mandatory Information Program will make a significant difference.[369]

It may be that the system lacks the leverage to direct persons in higher conflict to non-judicial dispute resolution. Disputants remain free to go to the court and, because of a lack of affordable legal representation, often will do so as unrepresented litigants. We do not know how well self-help materials work or whether the guidelines to deal with unrepresented litigants assist judges or have a beneficial effect for litigants.[370] The court process may thus remain slow for all users.

Responses have, understandably, been developed for the most vulnerable users in the Ontario system or have been developed to free resources for these users. Reviews by family law experts and surveys of participants nevertheless show that too many users fall through the cracks and struggle to find access to justice even with the existing resources available to them. With the exception of the Family Court Support Workers Program and the strengthened role of Information and Referral Coordinators, the 2010-2011 reforms do not specifically invest in “trusted intermediaries” which can be the bridge between low threshold community organizations and legal assistance,[371] nor do they expand legal aid eligibility criteria, both of concern to disadvantaged parties. We note that the strengthening of the Family Law Information Centers, court-connected mediation, duty counsel and Legal Aid provision through Family Law Service Centres are court-based and require vulnerable persons to access the court house.

For points of entry in their early information, summary advice and referral role, a lack of continuity of legal services can make it difficult to direct individuals to a certain pathway. Many proposals for reforms in the area of family law and civil law in general therefore focus on the delivery of legal services to low and middle income individuals with “unmet legal needs”.

We note that there is no exact definition of “legal aid need”, “legal need”[372] or “access to civil justice”. There are many factors which can cause “unmet legal needs”. “Unmet legal needs” are often referred to in the context of lower income persons who cannot afford private legal assistance and are not eligible for subsidized legal aid services. Higher income persons, however, can also have “unmet legal needs” if they cannot access legal services, for example because there are no or very few family lawyers in their region.  Furthermore, “access to civil justice” is not only about affordability and/or accessibility of legal assistance, but also about access to a process which can deliver timely decisions.[373]

For the purpose of this report we mention the following factors which can, for example, be relevant for legal needs:

  • The complexity of the case (whether with respect to the facts, the substance of the law, the process or the urgency of a timely resolution);
  • The significance of the matter;
  • The availability of other dispute resolution methods;
  • The symmetry of the process and the extent to which this process is adversarial;
  • The capacity of the individual to maneuver through the system without a lawyer’s assistance or with assistance, short of full representation. In practice this capacity may be related to, for example:
    o   the level of conflict and the emotional aspects of the case;
    o   a person’s education and legal literacy;
    o   a person’s communication skills and abilities;
    o   a person’s language and interpretation needs;
    o   cultural aspects;
    o   sickness, disability and mental health; and
    o   time pressures because of work and the care for children or elderly relatives; and
  • The costs of legal fees in relation to the person’s income and possessions.

These factors should be taken into account in determining how the family justice system should respond to someone’s family law needs. In light of the importance of the issues and the emotional context, legal needs in family law cases are often high, although this does not mean that the legal assistance must always be extensive and costly. The family justice system nevertheless requires constant and significant investments in order to meet family legal needs. The former Attorney General of Ontario acknowledged that despite its many strong elements, the Ontario family legal system needs significant strengthening and improvement.[374] He explained in November 2009, “[t]he system has for many become unaffordable, for many is too slow, for many is far too combative, a system that really does need a very significant structural change.” He went on to say that the system needs less paper, fewer steps and to bring the parties to a result faster.[375]

Where private legal assistance, needed to resolve a case, is not affordable for lower income persons, there may be a “legal aid need”. The jurisprudence of the European Court of Human Rights, which has accepted a right to legal counsel in certain civil and family law cases, can give some guidance.[376] Legal aid reviews also address and, to an extent, try to define the scope of legal aid needs.[377]

The most comprehensive study undertaken with respect to the Ontario family court system was the Mamo Report. This study was based on a review of 437 family court files which were closed between 2003 and 2005, prior to the most recent reforms.[378] The Report highlights many challenges for users and workers, often related to unmet legal needs.

Public consultations (again, prior to the recent reforms) confirm the analysis in the Mamo Report. Many Ontario citizens who responded to the Law Commission of Ontario’s 2010 consultations on family law found themselves disempowered by the lack of transparency in all services, the complexity of legal procedures, the unequal position of legal experts and clients, the financial strains which the legal system caused, and adversarial procedures which took a direction they did not want or in which they were not sufficiently involved.[379] The Report Listening to Ontarians showed that both low and middle income Ontarians in particular have problems finding access to justice.[380] Popular coverage of the system stresses the difficulties family disputants face.[381] Judges express their own frustration with the system.[382]

There has been no shortage of ideas about how to improve the system. For example, the University of Toronto Middle Income Access to Civil Justice Initiative refers to options to improve legal aid services for middle income (and also low income) persons who at present do not qualify for legal aid services. They include changes with respect to legal services[383] and changes with respect to the adjudicative processes: the use of mediation, tribunals and court reform (based on proportionality, “diversion and streaming”, simplification, case management and technology).

In this section, we will make recommendations which can be accomplished with little or redistributed funding and which can be build on existing structures and programs.

We are aware that the recommendations may address several organizations, including the Ministry of the Attorney General, Legal Aid Ontario, the Law Society of Upper Canada, the various courts and community organizations, each with their specific mandates and competences. Also the federal government plays an important role in the provision of access to family justice in Ontario. In some cases it is not entirely clear who should take the lead. We will often make the recommendation to the Ministry of the Attorney General, which should ensure the funding, coordination and streamlining of services under its mandate. But we recognize that other organizations can also have a responsibility or, in light of their expertise and core mandate, may even be better positioned to implement some of the recommendations.

To an extent, the fragmentation of family legal services which we describe above is a result of the various competences, mandates and budgets. For example, Legal Aid Ontario and CLEO have the mandate and specific expertise to develop informational instruments which benefit low income persons to whom the Legal Aid Services Act, 1998 applies. These can include plain language written materials, telephone and online services. The Ministry of the Attorney General may develop similar services for all users of the family justice system. The family courts may develop plain language guides for self-representing litigants and provide assistance in filling out forms. The Law Society of Upper Canada may develop materials which assist users and lawyers, for example for unbundled legal services. Pro Bono Law Ontario may offer information or self-help materials which have been developed in Canada or by sister organizations in other jurisdictions. In order to avoid duplications, the delivery of these services needs to be streamlined.

Below we will discuss recommendations with respect to entry points and their specific roles with respect to:

  • the provision of information and advice;
  • access to legal services;
  • non-judicial dispute resolution and judicial dispute resolution;