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.
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”. 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”. The CFPC sees continuity of care as one of the goals of the Patient’s Medical Home.
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”.
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 and the Australian Relationship Centres. However, these systems also have weaknesses, for example related to the affordability of the court process for the UK and the affordability of legal assistance and the position of vulnerable groups in Australia. 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.”
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:
Fast track pathways when there are immediate safety risks;
Urgent pathways when there is a need for immediate interventions with respect to access to children and financial and housing needs;
Multi-disciplinary services for persons with serious multiple problems;
General community and social assistance services;
Parenting education programs;
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:
- Subsidized full representation;
- Subsidized representation, short of full representation, for less complex matters;
- Unbundled services if more complex legal issues are limited to one or several issues;
- 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 resolut