Consultations raised various issues that are important to consider to better understand family justice entry points, as well as to develop recommendations for improvement of entry point service delivery and family justice more generally. First, they made clear that it was important to recognize and understand the emotional dimensions of family challenges and problems before thinking about legal or other issues. Second, they allowed the LCO to identify issues that need to be taken into account in thinking about family justice reform. Third, they provided additional examples of entry points into the family justice system and a better understanding of entry points already identified in the Consultation Paper. Fourth, they shed light on users’ and workers’ experiences. Fifth, they provided a better understanding of various aspects of service delivery. Finally, consultations helped identify broad underlying issues that will have an impact on the LCO’s final recommendations. Each of these areas will be explored in the following sections of the report.
A. Emotional Dimensions of Family Challenges and Problems
Not unexpectedly, we heard that emotions play a large role in family challenges and problems. Consultations confirmed that the level of emotion involved in a user’s situation is an important factor to take into account in order to find an appropriate way to solve their challenge or problem. In order to help better understand the emotional landscape of family difficulties, the LCO identified typical dimensions of family challenges and problems that emerged out of the consultations:
1. Issues Faced by Parents
· One parent wants to collaborate and the other one does not;
· One parent wants to save the marriage or the relationship and the other one does not;
· Parents cannot distinguish between their intimate relationship and their parenting obligations;
· Parents cannot see custody and support as two distinct issues; that is, that the amount that the payer pays in support payments is not a function of the amount of time the payer spends with the child; and
· Losing a relationship with a child is a catastrophe for a parent.
2. Issues Faced by Children
· Children want to be heard but they feel they have no voice and no power in relation to adults, including their parents, lawyers, counsellors and judges;
· They know when things go wrong and expect their parents to deal with their problems;
· They are frustrated that their parent who most needs therapy refuses to do it;
· They are angry at their parents;
· They are afraid of an aggressive parent;
· They are upset when one side of the family talks behind the back of the other;
· They are hurt when they feel that their parents don’t care about them;
· They feel their parents’ emotions and believe that they have to be supportive, which means that they become “their parents’ parent”; and
· They are outraged by the cost of legal services that their parents have to pay.
3. Other Issues
· People can have very different and unspoken expectations about an intimate relationship, which can create challenges and problems;
· People have to adjust their expectations about the difficulty and cost of solving legal issues;
· There is stigma around using the law to plan finances and care giving activities in families and not just as a tool to solve problems after they emerge;
· Isolated individuals face the most challenges and need support networks to heal from family disputes; and
· People lack trust in professionals as they doubt that they are committed to quality services at the lowest possible cost.
These are only a few examples of emotional dimensions of family challenges and problems, and their connection to service delivery. However, consultations revealed that understanding such dynamics is an important element in preventing and solving such challenges and problems. Users need their emotions to be validated during the dispute resolution process and if the legal system cannot fulfill this function, other services should be put in place to respond to this need.
From the viewpoint of a counsellor and mediator who participated in consultations, emotional transformations are necessary when a person goes through family issues. For example, married persons need to transform themselves into separated persons. Another example would be that mothers who have been the main caregivers need to acclimatize to no longer being primary caregivers and sharing caregiving responsibilities with the other parent. There can be many scenarios but the bottom line from a mental health perspective is that if someone gets what they want in court without having done emotional grieving, their issue will not be resolved. Consultations revealed how difficult it is for the legal process and emotional grieving to happen side by side. Most professionals to whom the LCO talked believed that, where possible, efforts to encourage a collaborative process, or on the contrary, where necessary, efforts to use the legal system to create a distance between parties involved in a family dispute and providing mental health support on each side separately, were essential elements to improve the family justice system. Consultations revealed that all workers involved in solving family challenges and problems, including lawyers, constantly have to make these judgment calls.
B. Factors to Consider for Reform
In addition to providing insight into emotional dimensions of family challenges and problems, consultations revealed factors to consider in reforming entry point service delivery and family dispute resolution in Ontario. Some of these factors relate to broad underlying issues affecting access to justice, such as lack of resources. Others relate to challenges faced by workers, such as obstacles to collaboration. Finally, some factors are linked to significant social problems, such as domestic violence. These factors will guide LCO reflections during its last research phase and recommendation development.
1. Lack of Resources
At a macro level, many good suggestions have been made to improve family justice, such as building one-stop-shops or ensuring that the same court services are offered across the province, but implementing them requires resources. At a micro level, the financial consequences of family problems are huge for users and families do not always plan for such expenses. Families go from sharing expenses to individuals paying for them on their own. Low income people face an increase in expenses as well as a lack of services, which can lead to homelessness and perpetuates the cycle of poverty. Users in general also face the high cost of family dispute resolution. The LCO commissioned a research paper to provide a cost benefit analysis of family justice services, which provides examples of such challenges.
No one likes their personal or family problems to be exposed to the outside world. Confidentiality is an important element in building the trust required between people who are trying to solve family challenges and problems.
Mental health professionals have confirmed this need for confidentiality during consultations. However, they recognized that this need often clashes with the legal system. If therapy is about having a safe place to open up and explore difficulties with a view to personal growth, it is difficult to imagine that anyone would be able to successfully do this if they were afraid that what they said in a therapy session may be repeated out loud in a court, a process that is open to anyone. In fact, one counselling service mentioned that they managed to function for thirty years with only once having to face a lawyer who tried to subpoena them. In a way, due to its reputation and strong conviction, this service managed to impose its own rules and coexist with the court system.
Mediators have also commented on the issue of confidentiality. Open mediation refers to a process where what is said during the mediation can be used later in court. In a closed mediation, bringing up issues discussed or statements made during the mediation in another process is not permitted. Some mediators, especially those who are mental health professionals, seem to prefer closed mediation as they see confidentiality is a crucial element of the process. In the absence of confidentiality, some mediators believe that parties cannot trust the process if they are not clear on what part of the process is confidential and what is not. Users tend to agree about the advantages of confidential alternative dispute (ADR) mechanisms. For example, a user who lives in a small town explained that going to court was extremely difficult because her family issues became known to everyone, which she found humiliating. She would have preferred having access to confidential ADR mechanisms.
This said, the rules of professional conduct of different professionals are often in conflict when it comes to what needs to remain confidential or not, preventing professionals from collaborating with each other. The LCO commissioned a research paper that explores this issue. It is also important to recognize that there are good reasons to make court decisions public if society as a whole can learn from others’ experiences; transparent decision-making also contributes to maintaining the integrity of the judicial system. There is therefore a fine balance between the need for confidentiality and information sharing, which the LCO will explore in its last research phase, from a more specific entry point perspective.
Because legal issues are only one part of the puzzle in solving family problems, legal professionals need to recognize the limits of their expertise. This is true for all users and workers involved in solving disputes. As an example, many users and workers mentioned that courts lacked the expertise to deal with children appropriately. Lawyers and judges are, of course, not experts regarding child development. However, they are still asked to make arguments about and evaluate the “best interest of the child”. Social workers and mental health professionals who participated in consultations explained that legal professionals were often very simplistic in their unders