IV. Towards a More Effective and Responsive System

IV. Towards a More Effective and Responsive System2017-08-30T19:05:41+00:00

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;
  • specific needs for groups in Ontario’s pluralist society;
  • the need for more knowledge about disputants in the system.

B.    Provision of Information and Advice

1.     Introduction

Like any other family justice system, Ontario’s faces challenges in the provision of basic legal information. However, the pluralist make-up of the province may make these challenges more complex. The users’ personal situation, their level of education, income and legal questions can widely vary. Some users are represented by lawyers, others are not. Some users have easy access to legal in-person services and others, because of distance, language, culture, disability or other reasons have not. Some users qualify for subsidized mediation services and some users qualify for legal assistance short of full representation. Cost and time estimates of ways of resolving disputes are often hard to give, but are relevant factors for persons’ choices. Most challenging of all, the information – both in content and format – must be suitable for those individuals who do not have the advantage of legal advice.

To be effective, an entry point must provide sufficient information to an individual to allow him or her to make an informed decision about the appropriate next stage in the process. Not only must the process be understandable, the relevance of the next stage must be clear to the individual: how well will it help him or her to resolve the problem? In order to direct users to a next stage the entry point must have some understanding of the family dispute.

Entry points may also play a referral role to wider family services, in particular for families in a situation of family breakdown who face multiple problems and require multiple services. The Australian government paper Towards a National Blueprint for the Family Law System said:

The family law system is a multi-disciplinary one. Various entities within the system have their own area of expertise.[…]Effective referrals are therefore essential to improving processes and outcomes for clients – they ensure clients get the services they need without having to re-tell their story. [384]

2.     Obtaining Correct and Appropriate Basic Information  

As we discussed previously, people in situation of family breakdown can enter the system through various formal or informal entry points, where they seek basic information.

People usually start to deal with their family problem by talking to family and friends. Depending on a person’s network these sources may not always prove to be useful. During the consultations the Law Commission of Ontario held with users, some participants found that friends and family members they had relied on were misinformed about family law and did not know where to refer their friends and relatives to receive legal advice.[385]

In practice, families with multiple problems may enter the family justice system via wider family services rather than the formal system.  Informal entry points, such as doctors and “trusted intermediaries”, can be expected to be aware of wider family services and to refer individuals to these services. However, professional informal entry points may not be familiar with the legal entry points.

Some persons may use the legal system as the first professional entry point. As discussed previously, legal professionals often tend to focus on the legal issues. Because of this, those persons who directly access a private’s lawyer’s services may not access family services which are available to them. For referrals to wider family services through the family justice system a person would have to access the court house, where Information and Referral Coordinators or Legal Aid workers (in particular experienced staff workers at the six Family Law Service Centres or Duty Counsel Offices) are expected to refer users to community services.

There are entry point services which try to bridge the gap between a person with multiple questions (that can have legal and non-legal elements) and services providers. Referral services such as 211 Ontario operate in a holistic context, which includes community services and local family law providers. The referral to legal services is, however, sometimes complex, because of the local availability, the financial eligibility criteria for legal aid services, and the limitations of telephone legal services (either through Legal Aid or the Law Society of Upper Canada), because of time constraints and an individual’s ability to communicate over the phone about more complex personal and legal matters.

While some of challenges for the provision of basic information are more related to follow-up services than finding an entry point, there is a need to better link informal entry points (ranging from someone’s sister to a doctor to a court interpreter) to the appropriate formal entry point of the family justice system, and to link the formal entry points to wider family services. We recognize that there are limits to this, given the diversity of the informal entry points and the diversity of formal entry points. The widespread distribution of initial basic information that outlines options about entry points or information services to access entry points may help that to some degree. The basic information provided should consist of ways to access both legal and other assistance, including in relation to domestic violence, by various means.

In order to ensure that people and their immediate networks have at least an initial access to information (primarily about how to obtain more detailed information), people require access to it where they are most likely to see it in their daily lives, such as supermarkets, shopping mall information kiosks, bus and other transportation stations, libraries, civic centres, doctors’ offices, schools, YWCA/YMCAs, youth and seniors’ centres, community centres, religious institutions, schools and other locations. We are aware that the distribution of basic written information through some of these places occurs to some extent.

The content of materials and their distribution could also be specifically directed at some of the most common informal entry points: to use the example of doctors, materials could be distributed not only in doctors’ offices, but also in medical schools or medical conventions in order to raise awareness.

For lawyers’ offices and, for example, family mediators, a very basic brochure about family services in a community could be developed. Lawyers’ and mediators’ offices should play an active role by handing out the brochures to their clients and, if needed, giving an explanation and offering some assistance to their clients in accessing a central point for family services.

The LCO recommends that: 

1. The Ministry of the Attorney General, in consultation with Leal Aid Ontario and CLEO, arrange for the preparation of plain language, colourful brochures or even single page handouts in different languages, and arrange for their distribution in locations where people worrying about their family problems are most likely to see them, such as doctors’ offices, YWCA/YMCAs, libraries, community centres and supermarkets and other similar locations.

2. The Law Society of Upper Canada and mediators’ organizations promote the distribution of brochures with basic information and the referral to wider service family services through lawyers, and members of the mediators’ organizations, respectively.

3.     Strengthening the Role of “Trusted Intermediaries”

The initial very basic information in the brochure which we recommend will do no more than allow an individual to take the next step in obtaining information about legal rights and non-legal services. This next level information must be provided in written form and in particular on the internet and in person.

While some users may seek information on the internet or in libraries, for many persons written and online information alone is not sufficient. Indeed, many persons, in particular vulnerable persons, are mainly in need of face-to-face information. Written and online information mostly supports the information that is given in person.

We previously discussed the importance of, and challenges facing, “trusted intermediaries” in community organizations. These may provide a vital first step to entering the formal system for individuals who for one reason or another lack the familiarity with the mainstream system.

In order to improve the early information and appropriate referrals by community organizations, front-line workers can benefit from specific training to identify legal and non-legal issues. Also a database would be useful for frontline workers. We are aware of such initiatives, for example through CLEO, and recommend that family breakdown be given priority in establishing local needs and community needs, and be given appropriate funding for services where demands warrant this.

The LCO recommends that:

3. The Ministry of the Attorney General and other relevant ministries, including the Ministry of Community and Social Services, the Ministry of Children and Youth Services, the Ministry of Citizenship and Immigration, the Ministry of Francophone Affairs, the Ministry of Municipal Affairs and Housing, the Ministry of Northern Development and Mines, and also including the Ontario Seniors’ Secretariat and the Ontario Women’s Directorate, provide financial and other resources for initiatives that focus on the role of community organizations in the provision of early information, referrals and personal assistance for persons in a situation of family breakdown through needs assessments in a community; and where demands warrant this, the training and education of frontline service providers, the creation of a legal telephone  information centre for frontline workers and/or the creation of a database with basic legal and referral information for frontline workers.

4.     Written and Online Public Legal Information

Our review of online information revealed at least three problems: its quantity on many websites, the difficulty in navigation or understanding by those who need it most and the apparent lack of knowledge among the public that it exists. These different challenges require different solutions.

We recommend the development of a single hub of plain language information about the legal process and options and availability of specialized services. The Legal Aid FLIP is a very good beginning for this kind of internet information. Also CLEO recently launched a website for users in November 2011. We recommend that current initiatives will be integrated. The information provided through the hub should be interactive and ease into more complex information.

The hub should be located on a “neutral” site that is clearly marked, although accessible from many other sites where people might seek information. We appreciate that different agencies may wish to provide information specific to them. To the extent possible, this should be included in the basic information or the basic information should include a relevant link to them. The existence of the information should be advertised in places people populate.

Written and online information must also be available for children. Children often feel left out of the system. The development of internet materials which are child-friendly may be a particularly appropriate way for children to learn about their rights or how to work through some of the difficult problems they might face during the breakup of their family. It cannot appear as if it is a legal document (as does the Ministry of Attorney General’s Guide for children when first seen on the Ministry’s website, although once the PDF is opened, it is a much more accessible document).

The LCO recommends that:

4. The Ministry of the Attorney General, in consultation with appropriate organizations, in particular Legal Aid Ontario and CLEO, develop a single online hub of plain language information about the legal process and options and availability of specialized services; develop a strategy to advertise the single online hub; and develop a strategy to give children of various ages specific information, including through online interactive methods.

5.     Early Legal Information, Summary Advice and Referrals: the Role of FLICs

After obtaining some initial information many individuals will seek legal services including summary and more in-depth legal advice. As described above, there are many ways that individuals can obtain preliminary or basic advice about the legal system, whether through private lawyers, FLICs, the Law Society of Upper Canada or Legal Aid, for example. For many people facing family problems, the connection of all these sources with the “formal” legal system, while important and helpful, may be intimidating for a number of reasons. This may be especially the case for new immigrants, for example, but for others as well.

As discussed previously, Family Law Information Centres as entry points play a specific role in the provision of early information. Since they do not apply financial eligibility criteria, they are potentially a main entry point for all users.

Despite describing some deficiencies, the Mamo Report recommended that the FLICs become the main point of entry into the family court system, as the recent reforms provide.[386]

The establishment of more FLICs alone does not necessarily address the problems the Mamo report and other studies have identified. We consider that an evaluation of the roles of FLICs is needed. We are aware that newly established FLICs may need some time to establish work processes in a specific community. However, in other locations the FLIC-model has been given time to develop. Short term evaluations can give valuable new information about their effectiveness.

The LCO recommends that:

5. (a) The Ministry of the Attorney General undertake a review of the Family Law Information Centres within three years in order to determine the frequency of use and how effectively they have disseminated information and advice; and

(b) based on the results of the review make appropriate changes as necessary.

6.     Summary Advice and Referral Before the Court House

We note that although many families in lower conflict can probably agree on most issues and negotiate agreements,[387] the 2010-2011 family justice reforms do not particularly focus on negotiation or face to face early legal advice before individuals reach the court house. Nevertheless, the prevention of legal problems and the promotion of fair agreements can be a method to reduce the pressures on subsidized mediation, legal aid and the court system.

In practice, community organizations, telephone advice lines and online information will direct users to lawyers who may assist in negotiating an agreement. However, some couples may not access legal advice during negotiations, which could disadvantage a weaker party. One party’s failure to obtain legal advice could also jeopardize the resulting agreement. Other couples, who would be able to reach an agreement with some professional assistance, may nevertheless enter the system through the court house (the Family Law Information Centre) and may enter more formal processes, including mediation, sometimes without accessing legal advice during these processes because of financial eligibility for legal aid.

In certain communities users may face particular challenges with respect to accessing court-based services or lawyer’s services without some extra assistance. We note that the Geography of Civil Legal Services in Ontario, citing a UK study, mentions the risk of “advice deserts”, where areas are inadequately serviced by legal aid lawyers or other appropriate services.  These “advice deserts” may not only be limited to rural areas but can also exist also in major cities.[388]

Where “advice deserts” may exist in Ontario, we recommend that Legal Aid Ontario invest in low-level legal information and advice services, for example through the placement in selected community centres of a Legal Aid lawyer, preferably reflecting the community (speaking the language or knowledge about cultural norms, for example). The establishment of new, or extra funding for existing, legal aid clinics, may also reduce pressures on local legal service providers or bridge the gap with legal service providers in other parts of Ontario, for example through internet (Skype) contacts.

We see particular value in a combination of summary legal advice in a community centre or, if funding allows for this, a legal clinic, with certificates for some hours of a lawyer’s independent legal advice to assist persons in negotiating an agreement or reaching a settlement through mediation.

The LCO recommends that:

6. (a) Legal Aid Ontario establish basic  legal information and advice services in areas or communities which are not adequately serviced by legal aid lawyers or other services, for example by placing Legal Aid lawyers in community centres or legal clinics which are funded to provide early summary legal advice in family matters;

(b) LAO make Legal Aid certificates available to low income persons in low conflict situations so that they can negotiate an agreement.

C.     Legal Representation Issues

1.     The Need for Immediate Measures

The major concern about legal representation is that too many people do not have it, even though they want and need it. As mentioned above, Listening to Ontarians found that 19% of low- and middle income persons with a family law problem did not seek any expert legal assistance, while another 24% indicated they had difficulty obtaining legal assistance.[389] The main reasons persons gave for not seeking advice were that they thought they did not qualify for legal aid or thought they could not afford a lawyer.[390]

There is broad agreement among commentators that Legal Aid Ontario’s funding for civil law cases is limited and that the income threshold for legal aid services or for clinic services is very low.[391] One commentator writes:

When Ontario’s legal Aid system was first created more than 40 years ago, the goal was to ensure justice for all Ontarians. Today, the system is unable to serve even all of the poorest in the province.[392]

While we believe that main access to justice challenges will need to be resolved by greater access to lawyers, including though more legal aid for a wider group of low income users, we believe that some measures with less significant fiscal consequences could help individuals, at least to an extent, in resolving their family disputes.

2.     Unbundled Legal Services

As indicated above, the Law Society has recently amended the Rules of Practice to recognize the difficulties associated with limited scope retainers, while at the same time explicitly recognizing them as an acceptable form of practice. Unbundling of legal services is likely to be used more often.

The Law Society’s recent amendments to the Rules of Conduct are designed to address the concerns which we identified earlier.[393] However, lawyers will also require training in these new rules and the particular practical risks of limited scope retainers.

In light of the concerns we have about offering unbundled services to some users, we suggest that some caution is needed with respect to unbundling in family law cases, in particular those cases which are likely to be more complex or, because of a high level of conflict, are emotional and may take longer to resolve. For example, one family lawyer has pointed out that custody matters may be too complex, while property matters or one-off pension disputes may be more suited to limited involvement.[394] Persons with limited legal literacy and persons who cannot fully assess the complexity of their case may be vulnerable when accessing fragmented legal services.[395]

Nevertheless, in less complex cases unbundling seems a reasonable response to the fact that many people facing family difficulties cannot afford the assistance of a lawyer. Samreen Beg and Lorne Sossin have noted that unbundling “creates an important halfway house between the unrepresented and the represented.”[396] Langan also recommended unbundling of services.[397]

Given the concerns about unbundling and the particular nature of family law disputes, we believe that lawyers need to be aware of the potential problems and to receive assistance in recognizing and responding to them.

The LCO recommends that:

7. During their legal education and training during law school and through the licensing examinations, future lawyers be advised and tested about the particular risks associated with limited scope retainers and the ways to address them.

8. (a) The Law Society of Upper Canada consider whether to require lawyers to have practised family law for two years before offering limited scope retainers.

(b) The Law Society of Upper Canada provide and advertise mentoring advice for lawyers offering limited scope retainers in family law.

(c) The Law Society of Upper Canada, in consultation with the Courts and other relevant organizations, conduct a study of the effectiveness of, and challenges with respect to, limited scope retainers in family law with the objective of minimizing the difficulties associated with such retainers.

3.     Self-help for Unrepresented Litigants

Given the Law Society’s imprimatur of unbundling of legal services, more lawyers may be prepared to provide a limited scope of service. Limited assistance may be “behind the scenes”, however, and the litigant may be the only person in a mediation, case conference or courtroom. Regardless of what may be put in place to increase or substitute for legal representation, there will be unrepresented litigants in the court system. There will also be litigants who choose to self-represent. There may be issues arising out of the latter that do not arise in the former case.

There may be some steps that will make it easier for unrepresented litigants to present their cases. For example, the Strategic Plan of the Superior Court proposes more understandable forms and processes, which can benefit unrepresented litigants.  Supporting Families to Support Their Children also recommended the harmonization and simplification of forms, and engaging plain language experts to rewrite the Family Rules. Unrepresented litigants could be assisted by electronic platforms for the filing of court documents or by allowing them to send motions for simple procedural matters by fax. On the other hand, to promote a basic understanding of the system, Supporting Families to Support Their Children considers that unrepresented litigants should be required to attend a Court Preparation Program, which would also be available through DVDs at community kiosks.[398]

To some extent the problems of unrepresented litigants may be said to include an informational problem that could be addressed by increased material for “self-help”. In order to assist unrepresented litigants, it is also often recommended that “self help” materials be improved.  Yet there is a great deal of information available, particularly online. If anything, the problem is too much information, including information that is difficult to navigate or understand. It is, furthermore, doubtful that self-help can be sufficient for many users. It is, for example, unlikely that disadvantaged people can represent themselves in a court procedure, even if they were assisted by a range of instruments short of full representation.[399] It is also unclear whether even persons with a higher education can successfully represent themselves. In this regard, California’s 2010 Elkins Family Task Force reported to the Judicial Council of California that:

 [S]elf help programs have earned almost universal praise from litigants and the courts. But even with self-help assistance litigants find it difficult to follow rules and procedures. The lack of legal representation is clearly an enormous barrier to many who seek access to justice in the family court.[400]

In order to accommodate literate unrepresented litigants, more interactive online forms and face to face legal advice or long distance in-person advice could be made available. This long distance assistance could be provided by telephone lines, such as Legal Aid Ontario’s Client Service Centre, advice lawyers or legal aid clinics. We reiterate, however, that the concerns with respect to access to justice are mostly related to a lack of legal representation, rather than a lack of information and that self-help can only assist persons with significant legal literacy in less complex cases. It is also important to appreciate that private online access varies across the province, from none to slow dial-up to wireless.

The LCO recommends that:

9. The Ministry of the Attorney General, Legal Aid Ontario and the Law Society of Upper Canada, in consultation with other relevant organizations, study how self-help materials in combination with face to face personal assistance and/or telephone or online assistance, provided by lawyers, legal aid lawyers or court staff can achieve access to justice for low and middle income persons.

10. CLEO be funded by Legal Aid Ontario and the Law Society of Upper Canada to prepare plain language brochures explaining the options available to unrepresented litigants, including limited scope retainers, and pro bono services if Pro Bono Ontario is funded to facilitate pro bono family services (see recommendation 12).

4.     Transparency in the Cost of Legal Fees

The practice of law is private enterprise. There are no limits on the fees lawyers can charge, other than the market and the ability of a client to seek a review of the fees in a particular case through the Assessment Office.[401] Nor is there uniformity in the fees lawyers charge. In many instances, the high cost of retaining lawyers has less to do with their actual fees, but rather with the process required to resolve the dispute. Some lawyers may prefer to provide services pro bono rather than deal with legal aid and the fees under legal aid. We do not make any recommendation about lawyers’ fees. However, we do note that some lawyers post their fees on their websites, as well as indicate whether they undertake legal aid work, for example.[402]

There are conditions for the way lawyers can advertise fees: advertised fees should be reasonably precise, include additional fees and the lawyer should adhere to the advertised fees.[403] We believe that posting fees and other related information would be helpful to individuals with a family dispute in trying to find a private lawyer or determine whether they could afford a private lawyer. While in itself, it will not decrease the cost of legal services, it might reduce some of the complexity for potential litigants.

The LCO recommends that: 

11. Family lawyers post information about costs on their websites, including any initial consultation fee, retainers and hourly rates, and whether they offer free legal services or accept a legal aid certificate.

5.     Pro Bono Services

According to the 2011 Report The Geography of Civil Legal Services in Ontario, the number of lawyers providing pro bono services free of charge varies strongly by region in Ontario. In some regions, such as Haliburton, up to 80% of all lawyers provide services pro bono, while in other regions, such as Toronto, this is closer to 40%. Also the number of hours varied by region. However, more research would be needed to assess whether and how much pro bono legal services is reaching clients who cannot access legal aid or afford to hire a lawyer.[404]

Pro Bono Law Ontario provides a more systematic way for lawyers to offer their services free of charge, rather than in an ad hoc way.[405] PBLO does not deal with family law matters (apart from child protection), however. It would be helpful if family law clients had access to these coordinated services, although pro bono services are more likely to be provided as limited representation with the challenges and potential for problems associated with these services.

We note that other organizations also assist low income Ontarians in accessing more affordable cost lawyer’s services. For example, Justicenet provides a gateway to access lawyers at a reduced tariff based on a sliding scale for persons in Ontario with an income under $59,000, who do not qualify for legal aid.[406] It also operates in the area of family law. It is, however, not clear how many lawyers actively participate and how many persons find access to a lawyer.

While we believe that pro bono activities deserve praise and support, we also recognize that a family justice system should not be built on volunteer services, even systemic pro bono services. In the current system, pro bono activities are a valuable instrument that needs to be promoted and encouraged. We believe it is important that a system of pro bono activities is as transparent and consistent as possible, so that scarce resources are allocated to the cases which can benefit most from the legal assistance offered on a pro bono basis. This allocation could take place by a triage and local coordination through PBLO or alternatively legal clinics offering family law services, if these were to be established in the short run.  It would be important that pro bono services work together, in order to avoid duplication and fragmentation.

The LCO recommends that:

12. (a) Pro Bono Law Ontario be funded by Legal Aid Ontario and the Law Foundation of Ontario to permit it to facilitate pro bono services in family law.

(b) Lawyers engaged in providing pro bono legal services be advised about the increased risks from limited representation and responses to address these risks prior to providing the pro bono services.

(c) Pro bono lawyers and organizations involved in the provision of pro bono services establish a gateway and a transparent system for directing persons to pro bono lawyers, based on users’ needs.

6.     Permitting Paralegals to Perform Some Family Law Services

We believe that representation in family law cases normally requires the expertise provided by a family lawyer.Nevertheless, in uncontested cases in particular, paralegals can make a contribution to the family legal system, either acting independently by, for example, completing forms and applications or providing basic advice about the system, or under the supervision of a lawyer representing clients in specified proceedings in Ontario courts. For example, prior to paralegals being regulated by the Law Society of Upper Canada, many paralegals assisted with uncontested simple divorces.

Langan recommends the use of “agents” (such as paralegals) where a couple has no children or significant assets,[407] as did Michael Trebilcock in his review of Legal Aid.[408] By summer 2011, the Law Society of British Columbia indicated that it was considering expanding the scope of paralegal practice.[409]

The LCO recommends that:

13. The Law Society of Upper Canada review the scope of practice for paralegals with the objective of identifying those areas of the family legal system to which paralegals can contribute to increase access to justice;

14. (a) If paralegals are allowed to offer services in the field of family justice, their education must include the necessary training to ensure that they provide legal services competently.

(b) To the extent paralegals offer a limited scope retainer, the same recommendations applying to lawyers should apply to paralegals as appropriately modified (see recommendations 7 and 8).

7.     Increasing the Scope of Legal Aid for Family Law

Although the government made an infusion of funding into legal aid, in part to increase assistance in family law, legal aid eligibility requirements remain high (in the sense that only people who have very low levels of income are eligible). This can mean that neither “legal aid needs” nor “legal needs” are not met.

Measures to increase access to justice through means other than a lawyer’s full representation, such as unbundling, self-help materials and a paralegal’s services can have two effects for legal aid needs. First, a person may be able to access these themselves, so that her or his legal needs may be met. Second, Legal Aid may subsidize and/or offer some of these services to low income persons, and thus meet the legal aid needs of a person.

We note, however, that it is hard to “predict” whether these and other measures that have been proposed to increase access to legal assistance and the scope of legal aid will be sufficient in an individual case. The assessment of a case and the allocation of legal services to a case can never be exact and what initially seems a straightforward case can turn out to be a more complex case, and vice versa.

Nevertheless, for some low income persons a solution, proportional to their needs, can probably be offered through:

  • Unbundled lawyer’s assistance under the legal aid program.
  • Greater legal aid for family litigants at least to receive greater assistance with self-help materials.
  • An incremental use of representation by family legal aid clinics or legal aid clinics offering family law services, in addition to an advice role. Langan, for example, recommended an expansion of family law legal clinics,[410] as did Home Court Advantage, which also proposed law school clinics, operating with students, paralegals and mental health professionals under supervision of a lawyer.[411]
  • Further expanding and improving duty counsel, paralegal and staff offices in the legal aid system, as was proposed by Trebilcock,[412] which has already been undertaken by Legal Aid Ontario.
  • Making legal aid certificates available to provide users with a lawyer’s assistance during negotiations of apparently low conflict cases, as was recommended by the LCO above (see recommendation 6b).
  • Making legal aid certificates available for mediation as was proposed by Home Court Advantage.[413] We note in this respect that Legal Aid has recruited mediators and that the new Family Law Service Centres of LAO offer mediation services.

Some of these instruments will not be suitable for all low income users, in particular users with specific needs. In his 2011 Annual Report, the Auditor Generally recommends that LAO make a risk assessment which would “take into consideration a variety of factors, such as a person’s having the capacity and the knowledge to manage his or her own case in the court system, language barriers, mental health issues, and computer literacy.”[414] The Auditor General notes that Legal Aid Ontario is taking action to address these risks.

We support the recommendation of the Auditor General. We also recommend that funding be made available for hardship cases,[415] where a person, due to individual circumstances, would have to incur disproportionate legal costs to meet legal needs. Such circumstances could be a disability, various learning problems (such as dyslexia) or traumas which make self-representation difficult and the communication with a lawyer more time-consuming. Older adults may not qualify for legal aid because of the ownership of a house: for them, a combination of high legal fees, a division of property and a low income could have serious financial consequences. In some cases Legal Aid Ontario can grant “discretionary increases”, for example because of special needs or the importance of the matter to the client.[416] However, it is not clear if and how this is used. For persons who do not meet the financial eligibility criteria for Legal Aid, there is no possibility to request legal aid services on a discretionary basis.

We are aware that, without a clear triage system, an increased capacity of legal aid services through diverse instruments may make the system even more complex and fragmented. Users may have to re-tell their stories many times. Ideally, an individual is given a limited number of services and service providers to resolve a dispute.

In order to provide services in a more streamlined way and in order to ensure that legal aid services are proportional to legal needs, an assessment and a legal aid triage performed at a central point would be needed. We will discuss this below as a long term instrument. We are aware that experienced staff workers at Legal Aid Ontario’s Family Service Centres already apply a legal aid triage. In the short term, these staff workers may play an even more central role in directing users to Legal Aid services.

We finally note that a broader set of legal aid tools may also allow for more inclusion of pluralism in the provision of services, for example through directing users to paralegals, lawyers (offering unbundled services) and legal advisors with an understanding of particular issues in a community.

The LCO endorses:

15. The proposal by Home Court Advantage that Ontario law school clinics and legal services provide (further) assistance in family law.

The LCO recommends that:

16. Legal Aid Ontario explore how providing proportional legal aid services to different user groups can widen the scope of legal aid; explore how these services can be allocated to a person with a minimum of intake moments and duplications, using a triage approach; explore how the delivery of multiple legal aid services can take Ontario’s pluralism into account in the legal aid assessments and triages, the referral to, and recruitment of, service providers with specific community expertise, and the development of materials and methods;

17. Legal Aid reserve funding for legal aid certificates in cases of hardship for a user who is otherwise not eligible for legal aid, in particular persons with special needs or elderly persons with a low income and a house ownership.

8.     Legal Insurance

Although not a subject of widespread consideration, some commentators have suggested that legal expense insurance (LEI) would be a way for individuals to pay for legal services.[417] LEI is common in several European countries[418] and in Quebec where family law information, but not litigation, is covered.[419] The CAW has long run a legal insurance plan for their members which includes some family law coverage,[420] as do a number of companies.[421]  The Law Society of Upper Canada has approved pre-paid legal plans.[422] Generally speaking, however, the coverage for family law is often different or more limited in existing plans compared to the coverage for other areas of law. There does not appear to be a great deal of interest in prepaid legal plans in Ontario. In the future they might provide a private sector option to increased public funding of legal aid and a candidate for employer benefit packages. The LCO makes no recommendation on this matter at this time.

D.    Dispute Resolution

1.     Non-Judicial Forms of Dispute Resolution

In the previous chapter, we considered the role of mediation in the current system, and its advantages and disadvantages. The challenges with respect to non-judicial dispute resolution are mostly related to persons selecting non-judicial dispute resolution when this is not a suitable method for them. We note that mediation is being treated as a significant route to more effective and speedier resolution of family matters. We are not convinced that the great emphasis on mediation is necessarily warranted.

While we believe that extra training for mediators, screeners and screening tools may reduce the risks that high conflict, “legal bullying” in the mediation process, power differentials and domestic violence are not detected, we believe that a solution for the prevention of unfair settlements must also be found in better access to independent legal advice.

An important factor in a mediation process (or other forms of dispute resolution) is the involvement of lawyers. As previously discussed, mediation, particularly of non-legal issues, can be carried out by non-lawyers. Indeed, it may be that training in other disciplines might be more desirable for mediation seeking to resolve more deep-seated family matters where the issues are less legal than emotional or relational. However, parties can be assisted by lawyers in a mediation process carried out by non-lawyers. This can change the dynamics of the process:

Research in Australia showed that the family dispute professionals were sometimes critical of lawyers.[423] The lawyers’ advocacy role to achieve the best legal outcome for their client could conflict with the mediation’s process, The Law Commission of Ontario’s consultations with workers in the family justice system noted similar tensions between professionals.[424] We note that in practice lawyers are capable of appreciating that their role in mediations is to achieve the best outcome for their client in a different way than litigation.

The access to independent lawyer’s advice and trusted intermediaries can be an important safeguard in the mediation process. Rhoades writes, in the Australian context, that the absence of a legal advocate is a major disadvantage for women who are victims of violence. She refers to a number of studies indicating that unrepresented clients often “settle too easily, or refuse to settle at all out of suspicion of being taken for a ride”.[425]

We recognize that the involvement of (subsidized) lawyers in non-judicial dispute resolution can make the process more complex and that cost-advantages of a (subsidized) mediation process may, in part, be lost because of legal fees. We believe, however, that it is important that low income individuals in a family dispute who seek non-judicial dispute resolution have access to, at least, several hours of subsidized legal advice, and in more complex cases can receive more intensive independent legal advice. Real access to such advice means that individuals are made aware of the importance of this advice and, where necessary, can be assisted by trusted intermediaries to access these services.

The LCO recommends that:

18. Legal aid certificates be made available to low income persons who use non-judicial dispute resolution, including in more “complex” cases, so that they can obtain, if needed, more extensive independent legal advice.

19. During their legal education and training during law school and through the licensing examinations, future lawyers be advised and tested about a role in non-judicial dispute resolution led by non-lawyers.

2.     Judicial Dispute Resolution

The process after individuals have entered the court system[426] is beyond the scope of this project. Nevertheless, some issues are particularly relevant to entry points.

We note that the challenges arising from the constitutionally bifurcated system have an impact on the capacity of entry points to be effective. Where Unified Family Courts have not been established, the need to select the right court is crucial. Indeed, for unrepresented litigants, even knowing whether they have a UFC available may be difficult to determine. The structure of the family court system in Ontario can add to the confusion and costs litigants face.  Addressing this requires a long term investment by provincial and federal governments for the establishment of Unified Family Courts across the province. There are some court entry point challenges which can be addressed without significant fiscal consequences, however.

We understand that volunteer Dispute Resolution Officers are now at many Superior Court locations. We believe that the system cannot continue to operate standardized procedures on a volunteer basis. We are also aware that in more remote areas it may be more difficult to find experienced family lawyers to act as DROs.

The initial assessment of a family dispute at the courts can be of great importance.  We are aware that there are concerns about the capacity of the system to deal with high conflict cases, including the judicial capacity needed for case management and a firmer judicial intervention,[427] the availability of assessors,[428] the ability to give assessments within a reasonable time and a speedy trial which follows,[429] and the recognition of the voice of the child.[430]  However, initiatives such as the Ontario Court of Justice’s Family Law Vision Statement and the Superior Court of Justice’s Strategic Plan show a commitment to easing litigants’ journey through the process. For them to be successful, it requires the necessary resources and an effective pre-court process.

We believe that the case management methods that are available at the courts, including the possibility to move a case to trial after one conference, justifies an investment in the assistance of judges by a person with mental health expertise. The involvement of mental health expertise early on in the process could in particular be useful to detect the nature of a (high) conflict and whether there are risks related to domestic violence and child abuse. We note that if more low conflict cases were directed to non-judicial dispute resolution or early settlement, the court process would increasingly focus on more “complex” cases, including very high conflict cases.

The LCO recommends that:

20. The Province fund a court-wide system of Dispute Resolution Officers.

21. (a) The Ministry of the Attorney General and the courts study the potential role of mental health experts, to assist judges in the effective management of family law cases; and

(b) if the study shows it would be helpful to heave mental health expertise available in family court, to provide adequate funding for this assistance.

E.     Responding to a Pluralist Society

In Ontario’s pluralist society challenges that, in general, exist for individuals in a family breakdown can become serious obstacles for users from certain communities.

There has been significant research on access to family and civil justice for individuals facing personal, language or physical barriers. We mention Cohl and Thomson’s Connecting across language and distance.[431] Also the Middle Income Access to Civil Justice Initiative addresses cultural and linguistic issues.

Strengthening the Early Stages for Persons with Specific Needs

To an extent, services that we have proposed above would benefit users who have specific needs because of language, literacy, culture or disability.

 It is important that these users are able to trust the services offered to them. Transparent basic information and easily accessible information hubs which take specific information needs into account, would inform users (and their immediate or wider informal networks) of their rights, choices and the services they can access. Community organizations that offer basic face to face information and act as a trusted intermediary can be an important entry point. Legal aid clinics offering family legal services closer to the communities may also offer less intimidating entry points in comparison with legal helplines or court-based services. Legal aid certificates for lawyer’s assistance during negotiations and mediation may offer, in comparison with court-based procedures, more informal methods of fair dispute resolution, closer to individuals. More transparent advertising of fees would inform users of potential costs and would make them less apprehensive about contacting a lawyer. Some families could receive more intensive services from multi-disciplinary teams for support.

Such measures could complement the instruments which have been introduced under the 2010-2011 Four Interconnected Pillars of Justice Reforms, including the Court Support Worker Program, the Mandatory Information Program, the expansion of FLICs, the strengthening of the role of Information and Referral Coordinators, the expansion of mediation, the expansion of duty counsel services and Dispute Resolution Officers.

We recommend that in the delivery of general family justice services the specific needs of persons due to language, literacy, culture, disability and other relevant factors be taken into account. In particular, it is important that for persons with specific needs access entry points, there is a smooth and expedient transition from these entry points to the specific family justice services they require and appropriate referrals to other family services. The role of FLICs for persons with specific needs and the provision of specific services need to reviewed and, if needed, strengthened or complemented by, for example, “trusted intermediaries”, specific information in various formats and access to summary legal advice provided by legal workers with particular knowledge and understanding of persons with specific needs.

In addition to our earlier recommendations, we therefore recommend a regular evaluation across the family justice system in order to assess the system’s early responses to the needs of persons who require extra assistance in accessing its services. We are aware of initiatives to remove systemic barriers which can prevent equal access to family justice services, such as the Accessibility for People with a Disability at the courts. [432] While we believe that the whole chain of service delivery in the family justice system needs to be assessed at regular intervals, access to entry points and the early stages of a family dispute merit particular focus, as these can influence the pivotal access to and first stages in the system.

The LCO recommends that:

22.  The Attorney General, Legal Aid, the Law Society of Upper Canada, mediator organizations, the courts and CLEO and FLEW and other relevant organizations

(a) evaluate at regular intervals if entry point services and early responses of the family justice services sufficiently address specific needs that exist in a community or the province, because of factors such as language, literacy, age, sexuality, culture, disability or being Deaf, deafened or hard of hearing, in particular with respect to access to basic and, where suitable, more in-depth information for persons with specific needs; and

(b) adjust or strengthen the services, if needed.

Long Distance Service Delivery

Individuals who do not face personal barriers but who can simply not access family justice services because of the physical distance to services in rural and remote areas face specific challenges. According to The Geography of Civil Legal Services in Ontario there are no clear patterns with respect to the distribution of family lawyers in the province and lawyers may be more evenly distributed than in other areas of civil law.[433] Young lawyers may increasingly establish practices in rural and remote areas,[434] but it is not clear whether this is for a shorter period early on in their career.[435]  Access to justice or legal services obstacles rather stem from a low density of lawyers per square kilometer than lawyers per capita.[436]

For persons who live in more remote areas long-distance methods are obvious instruments. Cohl and Thomson refer to the Ontario government’s Justice Video which is now being used for “case conferences, remote witness and expert testimony, sign language interpretation, solicitor-client hearings, training sessions, and meetings.”[437] In order to bridge the distance between legal service providers and people in remote and rural areas, Cohl and Thomson suggest the use of telephone hotlines, the use of the internet (to deliver information and some live assistance), and the use of videoconferencing.[438] Websites offering legal information are recommended, as are more innovative uses of the Internet.  They refer to the Nishnawbe-Aski Legal Services/Pro Bono Law Ontario “Ask a Lawyer” project. This project “allows community legal workers to consult with pro bono lawyers specializing in a wide range of areas through queries on a website.”[439]

These can all be important instruments. However, reliance on certain technologies to deliver legal information and provide legal services is inadequate for some communities. For instance, broadband is “still limited and spotty” in many rural areas.[440] Furthermore, many people do not have home computers or subscribe to Internet services, even if broadband is available. Telephone access is also not a given, nor is the ability to make long-distance phone calls.[441] Long distance methods also rely on literacy, computer literacy and legal literacy. Compared to people in urban areas, “rural residents tend to have lower education and literacy levels, lower incomes, fewer job opportunities and more seasonal employment, more housing in need of repair, and poorer health and access to health care.”[442]

Despite the challenges that exist, we think that at least a number of persons living in rural and remote areas can be assisted by long distance methods.

The LCO recommends that:

23.  The Ministry of the Attorney General give priority to the provision of “long distance” family law services through videoconferencing, digital files and, where local demand warrants this, the promotion of mobile services.

24.  Legal Aid Ontario give persons in rural and remote areas for whom there is limited access to face to face summary legal advice or independent legal advice wider access to telephone advice services, (wider) access to online advice, for example through Skype and chat services, and, if needed, the assistance of trusted intermediaries.

25.  The Law Society of Upper Canada and mediator organizations promote the delivery of online services among lawyers and mediators for persons in rural and remote areas.

Earlier in this document we described challenges facing Aboriginal communities. For many Aboriginal persons it is difficult to access and participate effectively in the family justice system in Ontario. Non-judicial dispute resolution is a potential way of resolving family challenges for Aboriginal individuals in a more sustainable way. The Ministry of Children and Youth Services, for example, sets out three possible methods of dispute resolution with respect to child protection:[443]

  • Child Protection Mediation;
  • Family Group Conferencing; [444] and
  • Aboriginal Approaches

“Aboriginal Approaches” relates to “[t]raditional methods of dispute resolution, including circle processes, which have been established by First Nations communities or Aboriginal organizations”.[445] This is assisted by “impartial facilitators who have no decision-making power and who are skilled in First nation traditional methods”.[446] A facilitator must be recognized by the First Nations community as qualified.[447] This is also known as Original Dispute Resolution or ODR.[448]

Despite these and other efforts and initiatives, the results of which need further research, access to justice for many Aboriginal persons remains problematic and will require further investments.

The LCO recommends that:

26. The Ministry of the Attorney General, in consultation with band and other organizations such as the Ontario Native Women’s Association, and other relevant ministries, including the Ministry of Aboriginal Affairs and the Aboriginal Advisor to the Ministry of Children and Youth Services, and Aboriginal Affairs and Northern Development Canada, give priority to traditional methods of dispute resolution, including through adequate funding for the education of the providers of family group Conferencing and Original Dispute Resolution.

F.     The Need for More Knowledge about Disputants and the System 

There have been many initiatives to assess access to justice in the civil justice system or the family justice system in Ontario. These studies have revealed many challenges.

While more research can be undertaken in the short run and we are aware of important studies which are currently conducted, there is a need for structural research.[449] We discuss this further below as a long term instrument. Unfortunately, reforms and planning for future reforms cannot wait until that research, if begun, has been completed.

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