V. Transforming the System2017-08-30T19:05:30+00:00

A.    Introduction

In the previous chapter, we have made recommendations which could be implemented in the near future. In this chapter we propose transformational reforms that constitute a starting point when the fiscal climate and the political will combine to permit more extensive reforms to the system.

We have concluded from our research, including consultations with users and workers in the system, that Ontario’s family law system requires a drastic change if it is to be truly effective and responsive. Whatever the merits of particular reforms (and in themselves they may well be meritorious), they have been layered onto an existing system. Different actors begin new information programs; others develop yet another place for users to go. The system is becoming a maze and for some persons a series of hurdles.

This is, again, not to say that that the instruments which have recently been developed or expanded are not useful. However, they are each probably only useful for a specific, sometimes relatively small, group of users: legal aid for persons who are clearly disadvantaged; case management for very high conflict families; self-help for persons with (significant) legal literacy; and education for disputants in a lower conflict who reach the court house and are not familiar with non-judicial dispute resolution. We recognize that the short term recommendations we have made will often also have a limited scope. After the 2010-2011 Family Justice Reforms and even with more investments that require little or no funding, however, main challenges will continue to exist.

We appreciate that in the short term there is unlikely to be funding to make significant changes to the family system. Nevertheless, we agree with Chief Justice Winkler, when he says

I do not believe [the changes required to the family law system] can be achieved by tinkering at the edges of the existing family law system or by grafting new procedures and services onto the existing system.  The reforms I am advocating can best be achieved by undergoing a fundamental overhaul of the current system.  Only in this way can we properly ensure that all elements of the family justice system work together in harmony to achieve a coherent and balanced system that is affordable, timely, easy to understand and easy [to] manoeuvre through.[450]

Although at entry points many of the structural challenges in the system will not be resolved, we believe that in the longer term investments in entry points can make the family justice system more responsive and efficient by reducing the pressures on persons in a family dispute and on the family justice system. We also believe that holistic approaches may have a broader societal impact.

In this respect we refer to problems which were noted in the provision of health-care, and which may be similar to those in the family justice system. In Health-care system needs a front door, André Picard writes that “without a clearly identified entry point, it’s much harder to co-ordinate efforts”.[451] He points out that “there is no place in the health care system where patients can routinely go to access the care they need promptly and efficiently and that tracks them throughout the health-care “journey”. The de facto entry point becomes the emergency room rather than a regular caregiver (family doctor). Because of this, there is no real gatekeeper for expensive services and little continuity in care. The transitions from one level of health care providers to another, is “where all the bad things happen”. He further points out that interdisciplinary teams, which include nurses, pharmacists and other health professionals, could provide continuity. This is referred to by the College of Family Physicians of Canada (CFPC) as the “Patient’s Medical Home”.[452] The CFPC sees continuity of care as one of the goals of the Patient’s Medical Home.[453]

While there are obvious differences between the provision of health-care and the provision of family justice services, for example because of the potentially much longer duration of a patient-family doctor relationship compared to a client-family lawyer relationship, the provision of family justice could be made more efficient through a “front door”, early prevention of problems and continuity of services. This front door should be created close to the clients and the communities rather than in an “emergency room”. We note that Legal Aid Ontario describes duty counsel services as the “emergency room of the court system”.[454]

It is obvious that entry point services rely on the resources of the system and the transition from one step to the next. Examples of good practices of entry points which are often mentioned are the UK’s Citizen’s Advice Bureaux[455] and the Australian Relationship Centres.[456] However, these systems also have weaknesses, for example related to the affordability of the court process for the UK[457] and the affordability of legal assistance and the position of vulnerable groups in Australia.[458] The lack of continuity (in other words the transition from entry point services to full legal services) is a concern.

In Canada, the continuity of services may be a particular challenge for the middle class who are neither eligible for legal aid, nor able to afford extensive legal representation. Nevertheless, it should not be forgotten that the eligibility criteria for legal aid mean that not only the middle class or middle income earners are not eligible, but many working class people, as well.

B.    A Blueprint

Each family justice system operates within its specific context. Criteria for an effective family justice system, which would be useful in the Ontario context, can be found in the Australian Government’s 2009 conference paper “Towards a National Blueprint for the Family Law System”, which emphasizes a streamlined, simple, fair, flexible, coordinated process with minimal duplication, taking the safety of all parties into account, placing a premium on the interests of children, and “strengthen[ing] cultural accessibility.”[459]

Our long term recommendations are based on the goals of achieving a family law system that provides access to justice, measured by how well the entry points achieve the following:

  • provide initial information that is accessible to people in their everyday lives;
  • help an individual determine the nature of their family problem(s);
  • provide initial advice that helps an individual decide whether they want the legal system to assist them with their family problem(s);
  • assist individuals to find the approach to resolving their problem that is as simple and timely as possible;
  • minimizes duplication of persons and institutions with whom the individual must deal;
  • respond to the particular needs of the individual as much as possible, taking into account the existence of domestic violence, and factors such as cultural norms, Aboriginal status, language, disability and other major characteristics;
  • do not compromise the equality and other rights of members of the family;
  • address the needs of children;
  • take into account the financial capacity of individuals without comprising the quality of service;
  • respond to the multiple problems that accompany family problems; and
  • encourage communication between different aspects of the system.

Ideally, a family justice system operates in a wider system of family services.  This system has various entry points for persons facing relationship problems or facing a situation of family breakdown. At a central entry point (where persons with family challenges or problems “routinely go”) the full scope of a person’s family challenges and problems can be assessed. The person can reach this central entry point directly or can be directed to it through various entry points which can be informal, “trusted intermediaries” in a community, family service providers, persons working in the area of family justice or public information. The central entry point itself can be accessed through various channels, including – ideally – experts giving face to face advice, or via telephone and online when this is meaningful for users. Once a person has entered the wider family service system, there are two basic steps. For convenience, we have listed these as if they always occur in a particular order; in practice, an individual may need to move back and forth between the steps, although if the system is effective this should only occur when it is useful and not because of a lack of adequate information or lack of coordination within the system.

Step 1. The central entry point should give basic information and be the gateway to a wide range of subsidized, free or low cost specialized services, in some cases for all users, in other cases for low and middle income persons or only for low income persons. The first basic triage can direct to:

  1. Fast track pathways when there are immediate safety risks;
  2. Urgent pathways when there is a need for immediate interventions with respect to access to children and financial and housing needs;
  3. Multi-disciplinary services for persons with serious multiple problems;
  4. General community and social assistance services;
  5. Parenting education programs;
  6. Specific (mental) health, counseling and/or legal services. Legal services may be community specific – if specialist services are available – or general services.

Step 2. When they reach specialized services, persons can access more in-depth information. The more specific services can be: independent legal advice for negotiations; free or low cost mediation with some hours of subsidized legal advice; or services related to the court system.

The legal aid services with respect to the court system can consist of:

  1. Subsidized full representation;
  2. Subsidized representation, short of full representation, for less complex matters;
  3. Unbundled services if more complex legal issues are limited to one or several issues;
  4. A paralegal’s representation in simple, uncontested, cases.

The services in the second step are directed at resolving the problem and will be subsidized for those who are eligible, based on fair eligibility criteria. They are provided by legal specialists, certified providers of non-judicial dispute resolution or specialist court staff who will have to decide which pathway is the most suitable to resolve a dispute. If they conclude that the assessment in step 1 was not correct or that the person should have been assessed in step 1 they could refer the case back to the triage in step 1 or, in the case of subsidized legal aid provided by lawyers, argue that a certificate for more extensive legal aid should be provided.

The system must be flexible, so that users of the system can access the system through the service providers in step 1 and 2. For example, persons who can agree on matters must be able to access the court system directly for a simple divorce. In order to qualify for subsidized legal aid services a person may be required to enter step 2 for an assessment. In order to access the court system a persons may be required to attend a mandatory information program or to be assessed by a case assessment coordinator or court master with respect to the level of conflict.

The effectiveness and responsiveness of this wider system remain dependent on the resources in the chain of services. For example, the extent to which persons have unmet legal needs in a court process can be influenced by a number of, often interconnected, factors:

  • The quality of early assessments and “legal needs” triage, and the quality of early information and referrals;
  • The quality and availability of low cost legal advice to solve issues early on;
  • The quality and availability of (affordable) providers of non-judicial dispute resolution;
  • The complexity of the court process, the timeliness of decisions and the resulting needs for legal assistance. Relevant factors include transparent Family Rules, the availability of judges and court staff, case management and, possibly, self-help tools that work; and
  • The availability of (affordable) family lawyers, legal aid lawyers, paralegals (in some cases) for the court process.

C.     Transforming the Current System

Our long term recommendations follow the blueprint we have identified above with respect to comprehensive, multi-disciplinary entry points; the provision of initial information and advice; the provision of legal services and specialized family services; and methods of dispute resolution. As we have said before, while it is somewhat arbitrary to treat these as discrete issues relating to consecutive steps, it is probably the clearest way to explain and frame the recommendations.

 

1.     Comprehensive Entry Points: Multi-disciplinary multi-function centres

We believe that “multi-disciplinary, multi-function centres” should be the foundation of the future family justice system. Individuals with family problems and challenges would first go here with their questions. These comprehensive entry points would allow a smooth transition for individuals from initial information gathering to, where necessary, the courts. This is the kind of reform that in our view would transform the system, making it both more efficient and more responsive to individuals’ needs.

At the centres, couples and individuals in a situation of family breakdown can be directed to local legal services, including mediation when appropriate, and get assistance in accessing online court services or online dispute resolution.[460] We believe that the centres should be easily accessible and non-intimidating for users.  Comprehensive entry points may be able to take advantage of community locations, particularly for those groups with a strong community affiliation.

How these multi-disciplinary multi-function centres should be structured depends on the ways in which family services, early legal information and advice and court services are delivered. Some initiatives for family law reform have proposed more extensive, holistic services at the courthouse. In other jurisdictions efforts are made to integrate legal services into wider family services, in particular for persons in a situation of family breakdown. There are also examples of more holistic, integrated services for early legal information and summary advice that include family law. We briefly describe these, but recommend that the multi-disciplinary multi-function centres be freestanding.

A Comprehensive Entry Point at the Court House

The Mamo Report suggested that the Family Law Information Centre should be “literally and figuratively an entry point to the family justice system”. FLICs must be holistic, comprehensive, and recognize and respond to the diversity of clients and issues.[461] Also, Supporting Families to Support Their Children envisioned a central role for FLICs and recommended that the FLICs be multi-functional and in some respects multi-disciplinary.[462] Although we appreciate the value in locating truly multi-disciplinary FLICs at courthouses, we have some concerns that the location does not provide the opportunity for services and dispute resolution before individuals are ready to consider the court process. The Mamo Report, for example, showed that almost as many individuals accessing a FLIC had already started a court action as had not.[463]

A Comprehensive Entry Point Integrated into Local Family Services

In some jurisdictions efforts are made to integrate legal advice services into the wider system of family services.

Organizations in the UK who responded to a 2011 consultation on parental responsibility indicated that “child maintenance is often just one issue that separating parents may need to resolve, and that there may be other practical and emotional issues to work through before parents can work together.”[464] The organizations mentioned housing, financial matters and legal advice, as well as family therapy services for parents in high conflict. A related theme in the responses from the organizations was how, in practice, their existing services could be integrated. The organizations suggested this could be done through already existing local hubs such as the UK’s Home-Start and Sure Start Centres. In its response the UK Government said it was committed to working across government and to developing a “gateway service”. The government further indicated it would need to gain a greater understanding of what types of support are most effective in helping families work together.[465]

A recent model for an integrated gateway for family services is that of the centres for Youth and Family Services that in 2011 are being established in all Dutch municipalities.[466] These centres are the points of entry for all municipal family services (for families with children up to 23 years), including for families in a situation of family breakdown. Although the focus of the centres is on family and youth services, the centres can bring local family services and local family lawyers together.[467] They are an intermediary with the local or regional providers of early legal information and the local or regional providers of shelters for victims of domestic violence.  The role and effectiveness of the Centres will be evaluated in the near future.

Ontario has made efforts to create Best Start Child and Family Centres (Best Start Centres). The centres are designed to bring community services together “in a comprehensive, flexible, integrated and seamless way.”[468] The centres focus on children up to 12 years of age and their families, and include childcare, family resource and early intervention services. The centres are to be linked to libraries, recreation and community centres, health services, family counseling, employment training, settlement services and housing.[469] These centres would make multi-disciplinary approaches easier to achieve than in the current, more fragmented context where family services have their own eligibility criteria, intake processes, funding streams and governance approaches.[470] Jacobs and Jacobs consider that community family legal services can be added to the package of the Ontario Best Start Child and Family Centres.[471]

We believe that a freestanding entry point for persons facing a family breakdown would provide a clearer front door than an entry point service that is linked to the courts or that is designed to address youth or children.

A Freestanding Multi-Disciplinary Multi-Function Centre 

Multi-disciplinary multi-function centres should, in our view, be connected to holistic legal services. They should be able to give basic legal information and summary advice on a number of family law issues and other issues that can arise in a situation of family breakdown, including financial matters and housing.

The centres should work in a similar way to that envisioned by Supporting Families to Support Their Children with respect to the entry point to the family justice system (albeit that Supporting Families envisaged this entry point at the court house).[472] Supporting Families proposed entry point services that include a Case Assessment Coordinator (CAC) who would be an experienced mediator and expert in mental health, as well as an advice counsel, a clerk and an on-site part-time or full-time mediator. The entry point service would provide information through pamphlets, videos, family information sessions, the internet, telephone, resource packages and community based information kiosks. An additional proposal by Supporting Families is to have a Supervised Access and Exchange Center connected to the entry point. We add that access to financial specialists could also benefit persons in a situation of family breakdown.

We note that the Report of the Legal Aid Review 2008 recommended reconceptualizing the mandate of Ontario’s legal aid clinics, so that:

clinics would routinely conduct a global needs assessment of their clients. Once a client’s needs are evaluated, an organized referral system could be relied on to assist in resolving the client’s existing needs, with an aim to prevent further problems from developing. Clinics would also be a resource for the public to go for summary legal advice and assistance that is not means-tested or is means-tested against more generous criteria than currently prevail. This more fully integrated response to individuals’ problems would also help to prevent the occurrence of “referral fatigue”.[473]

We would particularly welcome a system of “holistic” legal advice services offering family law services across the province, taking into account local and community needs. The advice services should not only focus on legal aspects. Family legal problems rarely exist in isolation and addressing them often requires obtaining other assistance.

The provision of broader services can lower the threshold for individuals who may otherwise be apprehensive about contacting family services that are associated with having serious family problems. In larger urban areas or areas where specific communities are more predominant the centres can offer more specialized services, while in other areas they could offer more generalist services within the community. A broader scope of the centres could also lower the threshold for “mobile centres” for families in smaller communities and more remote areas. These mobile centres could be patterned to the extent possible on the permanent centres and visit smaller or remote communities on a regular basis. We recognize, however, that privacy in mobile centres is more complex to achieve, and that for some users the provision of more in-depth services must be given through long-distance methods or, for example, through private lawyers in the privacy of their office.

We believe that the centres need to use several points of access and should not rely on only one. For persons with specific needs including older adults, Deaf, deafened people and hard of hearing people, people with learning difficulties, minority ethnic groups and people for whom English or French is not their first language, the main gateway should normally be through face-to-face services and not primarily be through a telephone or internet service.[474] This means that face-to-face services should be accessible and have sufficient capacity.

Frontline advice lawyers can offer face-to-face services, but could also be involved in frontline telephone services and interactive online services or e-services. Thus the advice services would become part of a province-wide, integrated system of early legal information and summary advice services.

For example, the Netherlands has a holistic entry point termed “the legal services counter” (Juridisch Loket).[475] It provides free basic legal information and summary legal advice on civil law, family law, consumer issues, housing issues and social assistance[476] through a website, a national telephone service, an on-line chat service and 30 offices throughout the country, staffed by 300 legal advisers.[477] It can mediate in minor disputes and can give summary legal advice that does not exceed one hour. It can direct users, via a basic assessment and triage to negotiation tools, mediation, a lawyer’s advice or a lawyer for legal aid representation. It does not apply financial eligibility criteria.[478]

The main strength of the Dutch system seems to be that all individuals in the early stages of the family dispute are eligible to receive summary to legal advice through a low-threshold organization that operates outside of a more formal context of private lawyers and courts. Most couples are encouraged, and in part required, to negotiate (parenting) agreements rather than go to litigation[479] or even mediation.[480] Because of accessible basic legal information and advice, affordable mediation and legal representation, the risk that people feel coerced to reach an agreement and fail to seek legal advice is significantly reduced. A further strength of the Dutch family justice system is that all interventions (from point of entry to the court) involve actors who can assist in reaching a solution. The legal services follow each other in one, streamlined legal aid system. This is also true for the supporting websites and information that contain interactive tools and practical procedural and referral information.

We are aware that advice lawyers offering holistic legal services should normally be family law specialist. The advice lawyers should have easy access to experts such as financial experts, social workers and lawyers in areas other than family law that might be relevant to a family dispute, such as employment or consumer lawyers. They should be supported by a helpline of family law experts. The helpline can provide telephone advice and a database with legislation and case law.

When designing an integrated system of multi-disciplinary multi-function centres with summary legal information and advice services, it is important to consider the accessibility of face-to-face services. For example, the Dutch system operates 30 Legal Counter offices across the country. This may not be sufficient for a province the size of Ontario. The UK system, which in 2011 operated 394 Citizens Advice Bureaux,[481] may fiscally be hard to establish. Legal Aid Ontario currently funds and oversees 77 independent community legal clinics, with nearly 550 staff who assist low income people.[482] For a system based on face-to-face services, relevant factors, such as the number of people served and specific community needs, would have to be identified.

We note that the streamlined provision of early (family) legal services can have several cost-benefits. For example, the current services provided by legal clinics, FLICs, LAO’s Client Service Centre, advice lawyers and other legal information and advice services, including Dispute Resolution Officers would, to a large extent, be offered in one integrated system, avoiding duplication of services and multiple referrals. In the current context, these services are fragmented. There may also be significant cost-benefits for the wider family justice system including court services. Although the Dutch system is one of the more costly civil law jurisdictions in Europe (and may rely more on court fees in the near future[483]), it may be that the Dutch system’s focus on early solutions for all users contributes to a less adversarial approach and a more efficient use of legal aid lawyers’, judges’ and users’ time. For example, about 90% of Dutch divorce and separation court cases are dealt with within one year and 60% of all divorce and separation cases, most uncontested cases, within two months.[484] A 2011 survey showed that 74% of professional workers and 82% of users in the survey were satisfied with the family court system.[485]

If persons are, for example, in need of counseling, family therapy or more extensive debt counseling, the multi-disciplinary multi-function centres should direct persons to specialized services and their entry points.  The linking of freestanding “multi-disciplinary multi-function services” to the system of wider family services would require cooperation between several ministries and other main providers of family services. The incorporation of legal services would require the involvement of the Ministry of the Attorney General. Other relevant ministries include the Ministry of Community and Social Services, the Ministry of Children and Youth Services, the Ministry of Citizenship and Immigration, the Ministry of Education, the Ministry of Francophone Affairs, the Ministry of Health and Long Term Care, the Ministry of Municipal Affairs and Housing and the Ministry of Northern Development and Mines. The Ontario Seniors’ Secretariat and the Ontario Women’s Directorate should also be included. In order to coordinate the process a Steering Group could be established. We refer, for example, to the Members of the Ministerial Steering Committee on Violence Against Women, which is comprised of 15 ministries.[486]

The LCO recommends that:

27. The Ministry of the Attorney General and Legal Aid Ontario undertake a study with the objective of establishing a comprehensive system of “multi-disciplinary multi-function centres”, located in the community, possibly connected to community centres that can serve as the initial source of information and guidance in family law matters and related matters. These should

a. be staffed by paralegal, a mental health specialist and one (family law) lawyer;
b. have easy access to experts such as financial experts and social workers, and lawyers in areas other than family law that might be relevant to a family dispute;
c. where possible, be staffed by workers who are reflective of the demographic makeup of the surrounding community; and
d. be supported by family law experts and a database on family law.

28. The relevant ministries dealing with family services in Ontario’s pluralist context, establish a Steering Committee in order to develop a consistent strategy for the delivery of family service for persons facing a situation of family breakdown, including persons who can be particularly vulnerable because of language, literacy, age, sexuality, culture, disability or being Deaf, deafened or hard of hearing.

In particular we recommend that the Steering Committee explore:

a.      how legal and non-legal family services in large and mid-size centres in Ontario can be connected, and provide diversity of resources or easy access to resources to individuals with diverse family problems; and

b.      how legal and non-legal family services can be delivered in rural and remote areas, including:

i.            the services that could be provided through mobile services;

ii.            the involvement of community workers as appropriate for the locations visited; and

iii.            the use of technology to supplement in-person resources.

2.     Elements of the Multi-Disciplinary Multi-Function Centres 

Provision of Initial Information

The “multi-function multi-disciplinary centres” which would be the foundation for family justice services and related family services, need to be supported by a comprehensive website.

Above we described that there may be too much written and online information in too many places without insufficient help to translate it from legalese to plain English and other languages.

In the long term we envision the creation of a site, which is the main reference for all persons facing family challenges and problems. The site would have a legal and a non-legal component. It could be designed to give information on all aspects of family issues or be the portal to specific websites of legal information services, pro bono services, the family court services and family services.

The site should be developed in a way that this is the main entry point for information on family problems in Ontario at the initial stages of a family breakdown, and also continues to be the point of reference for separating and divorcing individuals. The site must be neutral and well advertised. We have to recognize that people will not immediately think of accessing the Ministry of the Attorney General’s or the Law Society’s websites when they are thinking of resolving their family problems. Furthermore, they do not remember information learned some time before when they actually need it, and therefore it needs to be available where people may come across it “by chance” at a time that addressing a family dispute is in their mind.

The site should meet the information needs of various user groups, but also the information needs of organizations assisting persons as “trusted intermediaries”. In practice, these organizations assist persons with specific communication needs, such as persons with a disability, the Deaf, deafened and hard of hearing persons, persons with language and literacy problems, the elderly, members of First Nations communities and Aboriginal persons in urban settings, and persons with a particular cultural background. The information on the site should take this into account.

Furthermore, the site needs to address specific legal needs which can exist for individuals, such as LGBTI persons, persons with an immigration background, the elderly and grandparents, and biological and non-biological parents in certain family situations.

The site needs to address the various stages involved in a dispute resolution method, whether judicial or non-judicial, and take into account the different situations of access to legal advice and representation and the different personal situations, including parental conflict and domestic violence and child protection issues.

It is important that the site does not just give legal information, but also general family advice and referral information. The information should be practical and, where possible, interactive, so that users, with the assistance provided by legal advisers and community workers, can use these for reaching agreements, the early resolution of a dispute or the court process. While court-related tools, such as the Court Forms Assistant, have already been developed, other tools for early dispute resolution can consist of a “legal aid needs assessment tool”, a “parenting agreement tool” and “a separation or divorce agreement tool” which can clarify legal questions and facilitate the negotiations between individuals and their legal advisers[487] or similar instruments that have been developed in Canada and other jurisdictions.

Finally, the site should have a local and regional component so that users can find the services nearest to them.

We note that Legal Aid Ontario has established FLIP, which can be the basis for a more extensive site. We further note that the Law Society of Upper Canada approved an online family law platform in December 2011. The online platform would overlay the existing resources available online and provide a “first stop” for users. The platform will be built in stages.[488] We commend these initiatives, and recommend that, in addition to legal information, the site will also include wider family services and become (part of) “the portal” for family information in Ontario and integrated legal information and other services. We encourage the melding of diverse sites to reduce duplication or the creation of a portal that is easily accessible that provides links to specialized sites.

The LCO recommends that:

29. The Ministry of the Attorney General take the lead in an inter-ministerial and cross-sectoral initiative to develop an online portal for families in Ontario which, by itself or in combination with specific websites, gives access to information on a broad range of family issues, including legal issues. The portal should function as the main entry point for all family services, and with related sites it needs to give information to a wide group of users, including those belonging to communities with specific information needs and challenges, and community service providers assisting these users. The information should address all stages of a family breakdown and the resolution of a family dispute. The information should include information on local and regional service providers.

30. The Ministry of the Attorney General, in consultation with CLEO, expand and develop online tools for parenting and separation or divorce agreements which include calculation models, formats for agreements and an explanation of legal concepts in order to assist couples and their legal advisors in reaching an early resolution for family legal challenges and disputes. These can be offered through the main portal or a specific website with legal information.

Selecting a Pathway and Basic Triage

 A main function of the multi-function multi-disciplinary centres would be an early triage function. We believe that, in addition to a triage at the court house (for example through a CAC at the courts), a basic triage, before a couple reaches the court, can make the provision of services more efficient and responsive.

In our view an “early assessment and legal needs triage” would be the most effective if performed in the “one stop shop” of a multi-disciplinary multi-function centre. This triage should be based on a number of factors: the level of conflict, the existence of power differentials, domestic violence, children’s issues, legal issues which are disputed or not disputed, the individuals’ individual circumstances and the capacity to use various tools.  We note that “legal needs” which we described above can have many aspects. But beyond the scope of legal needs, also the suitability of and need for wider family services can be related to specific factors:

  • cultural norms or religious beliefs that affect the family relationship, or raise issues about whether family members will be treated equally;
  • the existence of an extended family where other family members have played a significant role in caring for the children;
  • the presence of a significant disability; or
  • significant financial difficulties.

These are just examples that add to the complexity of a family situation. Triage would allow appropriate specialist resources to be provided to assist the parties in reaching a long term resolution whether by non-judicial means or by the courts.

Based on the initial assessment, persons can be directed (triaged) to subsidized community legal advice services (legal clinics or specialized family law clinics), a legal aid lawyer, a private lawyer, a paralegal, online information or tools, (mandatory) information and education programs, services at the court house, as well as community family services, financial advice services, counseling services and (mental) health services. Ideally, many of these family services are offered at, or close to, the central location where the triage is performed. Where this is not possible, the services should be easily accessible.

The persons who perform the triage should be mental health professionals, family mediators or a family law lawyer or some combination. They would have to be aware of specific community needs. For the training standards input from various cultural and ethnic groups should be obtained.[489] The legal needs triage can combine an assessment, summary legal advice and a triage to specific legal services. The provision of summary legal advice requires a lawyer’s expertise. However, where there is a shortage of family lawyers, a basic triage could also be performed by, for example, a paralegal or a generalist lawyer.

The triage can be used to prioritize cases and to allocate time for legal advice or legal assistance. It should be supported by a database that contains updated information on lawyers’ and paralegals’ specializations and availability, and the availability of other services including their availability for legal aid.

A database to track clients and the creation of a client’s electronic file could make the system more streamlined. However, this may raise confidentiality issues. We recommend that an intake assessment cannot be passed on to other services, for example legal aid services at the courts, unless with the individual’s explicit consent and where the Rules of Professional Conduct of the Law Society of Upper Canada[490] and codes of conduct of other professions involved in multi-disciplinary practices allow this.

For a streamlined system it is important that the early triage does not become a source of distrust, a cause of delay or an obstacle to efficient, responsive resolution of disputes. The early triage should be a mandatory step in order to access legal aid services. Alternatively, a person who chooses to enter the system through the triage function may be offered subsidized legal services.

The LCO recommends that:

31. The Ministry of the Attorney General establish a triage system to be implemented at the multi-disciplinary multi-function centre preliminary to families entering the court system in order to address particular needs of families and direct these families to the most appropriate form of dispute resolution.  The person(s) performing the triage should have expertise in family matters in addition to legal expertise and assess many factors, such as the role of extended family members and the complexity of a legal or family dispute, including other problems such as financial or psychological, in addition to domestic violence or other forms of “high conflict”.

Early Resolution

A function at the multi-disciplinary multi-function centres akin to that of Dispute Resolution Officers at the Superior Court locations could assist the parties in achieving the early resolution of some or all of the issues in a dispute.

The LCO recommends that:

32. The Ministry of the Attorney General fund a function akin to Dispute Resolution Officers in the Superior Court who can assist the parties in achieving the early resolution of some or all of the issues in a dispute.

Comprehensive Specialist Family Services 

The multi-disciplinary multi-function centres should be a gateway to specialist family services. As previously mentioned, the accumulation of problems can make some families very vulnerable. Situations of high conflict and/or domestic violence combined with other problems, such as traumas, a low income and the care for children can deeply impact a family.[491] In very difficult cases, violence against children, domestic violence against a partner, substance abuse, criminal behaviour and socio-economic problems can affect a single family. Some families have a history of marginalization in Ontario and may face many legal challenges and barriers. Aboriginal communities, which face intergenerational damage, may be at risk.[492]

Some families are, therefore, in need of specialist, multi-disciplinary family services. These could be provided in organizations that also consist of “multi-disciplinary multi-function centres” or by separate centres. Families with serious family problems may be most in need of longer term family services, and legal pathways and family services’ strategies should be, as much as possible, aligned.

Although there are challenges to multi-disciplinary approaches, we believe that multi-disciplinary organizations teams can have great value for families and individuals facing multiple problems in a situation of family breakdown. An expansion of multi-disciplinary services across the province could give more individuals access to these services.  We are also aware that there are limitations to the comprehensiveness of interdisciplinary services, for example because of distance outside urban settings.[493] For many individuals in small communities, including those in rural and remote areas, privacy and anonymity with respect to family issues are very important. This limits the use of, for example, mobile services visiting such communities.

In the establishment of local and regional multi-disciplinary teams, local contexts and community contexts must be taken into account. We believe that for certain communities the involvement of representatives of their community can increase the credibility of the services and can lower the threshold for individuals. While multi-disciplinary organizations need to be established in a community itself and require local workers who are willing to work together, the provincial government can promote and facilitate multi-disciplinary practices through incentives and information.

The LCO recommends that:

33. The Steering Group (see recommendation 28) explore ways in which to:

a. Strengthen existing multi-disciplinary services and promote the creation of new multi-disciplinary services, where local demand warrants this, by allocating funding, facilitating the exchange of information within these services, by promoting good practices and by raising awareness among users and workers in the respective family services so that users find these services.

b. Promote the incorporation of pluralism in the local delivery of multi-disciplinary services by involving representatives of communities that are served by the centres.

3.     Provision of Legal Aid Services 

Access to legal services cannot be separated from the availability of legal aid. While changing the eligibility criteria to allow greater access is a common and easy recommendation[494] (and one we also make, acknowledging the cost), we recognize that there are other ways to deliver legal aid services. An increase of legal aid budgets could also be used for legal assistance, short of full representation, rather than legal aid certificates for full representation by a lawyer. Home Court Advantage recommended the adjustment of the financial eligibility criteria for legal aid to increase access to independent legal advice.[495]  We support this recommendation.

There are, nevertheless, concerns about LAO’s eligibility criteria for full representation by a lawyer. In his 2011 Annual Report the Auditor General pointed out that

the financial eligibility cut-offs for qualifying [for legal aid] have not changed since 1996 and 1993, respectively. This, combined with an escalation in the aver­age legal billing for each certificate issued, has meant fewer people over the last couple of years have been provided with certificates and more clients have been required to rely on duty counsel, legal advice, and information from Legal Aid Ontario’s website for legal services.[496]

About 80% of approved applicants have an annual income of $10,000 or less and the majority are on social assistance or have no reported income.[497] The eligibility cut-off for a single person ($10,800 a year) is “so low that someone working full time at the minimum hourly wage would earn twice as much.”[498]

Legal aid in the Netherlands, which is generally considered a good practice,[499] is more extensive than in Ontario. It is estimated that 40% of the Dutch population would qualify for legal assistance under the financial eligibility criteria, although – in addition to court fees – a legal aid contribution may be required, depending on income. Legal Aid includes, depending on the nature of the case and the choice of disputants, legal aid certificates for mediation and for online mediation (ODR) offered through legal aid; legal advice provided by lawyers for three hours; and legal aid certificates for full representation on all family and related civil legal issues, based on caps.[500]

Although the number of contacts with legal assistance or legal advice in the Netherlands, which has a population of over 16 million people, was slightly lower than in Ontario in 2006-2007, the Netherlands granted a considerably higher number of legal aid certificates in comparison to other legal services than Ontario.[501] It should also be noted that the Dutch legal aid system has had a significantly higher compensation per hour for lawyers.[502] Accordingly, the Dutch Legal Aid services have not had problems attracting family legal aid lawyers,[503] whereas Ontario’s Legal Aid system has.[504]

We recognize that the total budget for legal aid in Ontario and for the court systems[505] would need to be significantly increased to match the Dutch budgets, in particular in the area of civil law: in the Netherlands the per capita cost of legal aid in 2008 was €27 (about $37)[506] as opposed to $27 in Ontario in 2006.[507] In 2010, the per capita cost of legal aid in Ontario was even reduced to just under $15,[508] but the family law justice system was given extra funding.[509]

A comparison of Ontario’s legal aid system with that of other provinces in Canada also shows that LAO applies higher eligibility criteria (that is, it is harder to qualify for legal aid certificates for full representation in Ontario), but that Ontario offers almost three times more duty counsel assists per capita than the provincial average.[510] In part, this explains a higher legal aid budget in Ontario, compared to other provinces. In his 2011 Annual Report the Auditor General recommends that LAO, in collaboration with the Attorney General, study the impact on low-income individuals of its current financial eligibility threshold since 1996, and its shift to using less costly legal aid support services. He further recommends that legal aid programs in other provinces be assessed to identify the factors and best practices contributing to their lower costs. In its response to the Auditor General, LAO says it is concerned about access to legal aid services. It holds that cost comparisons are difficult to make precisely, and that cost per service is another meaningful measure, however. [511]

We believe that the financial eligibility cut-offs need to be adjusted across Ontario’s legal aid program, so that this program can respond to a user’s legal needs. Through a legal aid triage, a user could be directed to a particular legal aid service “proportional” to his or her  legal needs, including some hours for advice, mediation, duty counsel, unbundled services or full representation.  The eligibility cut-offs should take the cost of living and the cost of legal fees in an area or the province into account. In the application of the criteria, a person’s specific needs which can lead to higher legal costs may need to be taken into account, either on an individual basis or on the basis of objectively established multiplication factors.

The LCO recommends that:

34. The Ministry of the Attorney General provide funding to Legal Aid Ontario to give greater access to legal aid services in individual cases, based on a persons’ legal needs, both in the area of family law and other areas of law which affect families.

35. Legal Aid Ontario, in cooperation with the Attorney General, the Law Society of Upper Canada, and the Courts set annual eligibility cut-offs, based on cost of living and cost of legal fees, and caps for legal aid, which are adequate to give access to proportional legal aid services.

36. Legal Aid Ontario, in cooperation with Family Courts, the Law Society of Upper Canada, community legal clinics and community organizations, develop criteria for a legal aid triage to “proportional” legal aid services for persons in a situation of family breakdown.

4.     Dispute Resolution

Non-Judicial Dispute Resolution

Regardless of efforts to improve the legal system, the resolution of family disputes, in particular in the court process will remain stressful. The view that “most litigants cannot afford the financial and emotional toll of navigating a cumbersome process that leads from separation to the final dissolution of a marriage”, is shared by users and workers.[512]

The Mamo Report concluded that changes should not be primarily directed to the court process but to a paradigm shift from a culture of litigation to that of cooperative dispute resolution: “The court should be the last option for the few cases that require the formal authority and coercive power of the court.”[513] This is consistent with most subsequent commentators and the most recent reforms initiated by the Attorney General.  For example, Supporting Families to Support Their Children reinforces the Mamo Report’s major recommendations.

A main premise of the organizations’ recommendations is that the court procedure should be the default and not the standard process. Only a small percentage (less than 5%) of high conflict cases would require a family court system with specialized resources, consisting of specialized judges. Judges should be allowed to order a parenting coordinator (or “Special Master”) to high conflict “revolving door” litigants to assist in the implementation of minor conflicts, such as parenting schedules. Unnecessary and abusive litigation should be discouraged by awarding costs.[514]

We agree with this premise, and believe that more users can be directed to less adversarial dispute resolution. We also believe that experienced judges and court staff can provide the authority to do so. However, we emphasize that non-judicial resolution must be affordable and ensure that the parties are being treated fairly and responsively to their particular needs. Furthermore, even though the parties may not be in court, it does not mean that they do not require legal assistance in order to satisfy these objectives.

A number of commentators believe that making mediation mandatory in separation and divorce cases would make a significant difference to the family law process by encouraging the parties to settle their dispute earlier. Mamo, Chiodo and Jaffe wrote that “the suggestions  to have the Family Court Rules changed to provide for mandatory mediation in family law matters was raised repeatedly at a number of sites and needs very serious consideration. A requirement in the Rules that certain cases be referred to mediation as part of the case management process would assist immensely in changing the culture of litigation in the family justice system”.[515] Chief Justice Winkler also proposed to introduce a concept of “presumptive mediation”.[516]

Although we endorse the premise that the court should not be the standard procedure, we do not, at this stage or in the longer term, see significant benefits in making an attempt to mediate mandatory before individuals can enter the court process. We believe that the family justice system already places significant, perhaps too much, emphasis on mediation. Probably many persons in a lower conflict already negotiate an agreement or choose another non-judicial resolution method. For persons in higher conflict mediation is more complex. In particular for these situations mediation requires high quality mediators, legal advice, assessments whether mediation is suitable in light of power differentials and assessments whether an individual has made a genuine attempt to mediate. Perhaps most importantly, mandatory mediation does not seem compatible with the key principle of voluntariness in mediation. In cases of higher conflict the will to reach a compromise often does not exist, at least initially.

Judicial Dispute Resolution

Earlier we indicated that the Superior Court has instituted a new case management system. We described how case management at the courts could be strengthened by a mental health specialist who can assist judges.

In the long run, more comprehensive triage mechanisms may be developed at the court houses. Home Court Advantage recommended that a Case Assessment Coordinator (CAC) would perform the triage. CACs at the courts would screen for domestic violence and level of conflict and refer parties to appropriate resources. Thus CACs would “ensure that each court attendance is necessary and appropriate”.[517] Cases of an urgent nature would be fast-tracked to the court. Such cases may involve custody issues with domestic violence, failure to pay child support or spousal support, failure to abide by a parenting plan or terms of a separation agreement. If parties wish to litigate but the CAC believes alternative dispute resolution would be more appropriate, this could be noted on file.

In relation to the development of a CAC-function we note that Bala and Birnbaum recommend an empirically validated instrument that identifies different levels of conflict. This would assist mental health professionals in targeting specific interventions, thereby reducing the stress on children and families. This would also assist the courts in early case management.[518] The eventual introduction of a case assessment coordinator (CAC) at the courts could contribute to such an early detection.[519]

We support the further development of triage functions at the court. We believe that when triage earlier in the family justice process are able to direct users to fair and affordable mechanisms for the prevention of legal disputes and non-judicial dispute resolution, court services can more effectively focus on complex cases, involving high conflict, allegations of or actual domestic violence and other complex or urgent legal matters.

Our own project is focused on entry points. However, we want to be clear that while we have focused on entry points because we believe that when they are effective and responsive, it can avoid many subsequent problems, there needs to be continuity in the rest of the system. For the effectiveness and responsiveness of entry points to continue to have effect, the next stages of the process must also be reformed.[520] We acknowledge the courts’ own efforts to make their process more effective and particularly endorse a triage process that further differentiates cases that have reached the courts, with a view to diverting those with the potential for effective mediation, for example. However, we make two general recommendations in relation to the courts, adding our voice to those who support the creation of more Unified Family Courts and the principle of “one family, one judge”.

The LCO recommends that: 

37. The Province continue to work with the federal government to establish Unified Family Courts throughout Ontario.

38. The courts make every effort to ensure that, after a settlement conference, if any, one judge is responsible for adjudicating a family’s litigation.

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

As we explained above, we lack sufficient information about the family legal system and the effect of various reforms. As a long term vision we propose a research centre that supports the courts, Legal Aid Ontario and practitioners by conducting specific research, user surveys and developing innovative (online or other) instruments.

The LCO recommends that:

39. The Ministry of the Attorney General, the Law Society of Upper Canada and Legal Aid Ontario, and other organizations with particular relevant expertise, undertake a study of the family legal system with the objective of developing reforms that will respond the needs of users by systematically collecting data about
a. the Family Law Information Centres with respect to users, services and outcomes for users;

b. court users, process and outcomes;

c. the effectiveness of subsidized mediation;

d. the use of self-help materials; and

e. the experience with limited scope retainers in family law.

Previous Next
Last Page Last Page
Table of Contents