As part of its family law project (“Best Practices at Family Justice System Entry Points: Needs of Users and Responses of Workers within the Justice System”), the Law Commission of Ontario consulted with 49 individual and groups from across Ontario, including northern regions whose needs and experiences are often overlooked, during the fall and winter of 2009-2010. Of these, more than a quarter were conducted in the French language.
The family law project will make recommendations for improvement of entry points into the family justice system. The LCO consulted both users of the family justice system and workers who provide services in order to provide a clearer picture of what both users and workers need from the family justice system, whether those needs are being met, and what the barriers to meeting those needs seem to be.
The consultation process allowed the LCO to hear firsthand about the experiences of those working within, and those affected by the family justice system. Participants provided invaluable information regarding their experiences, and brought to light several issues that warrant further consideration by the LCO in the final stages of this project. This summary will highlight some most important issues that were brought up during the consultation process.
Emotional nature of family disputes
The emotional nature of family issues can hinder the resolution process and make it difficult for parties to make “rational” decisions. The legal system is also ill-equipped to deal with the emotional issues that arise in family disputes. This gap in the system is even more challenging for people who, in addition to dealing with emotions, express themselves in a second language, have a low literacy level or cope with a disability. They are sometimes perceived as less capable or credible.
Using the legal system for financial and family planning
The purpose of this early intervention is to prevent the emergence of complex and potentially unsolvable legal issues later on. There is a reluctance to use pre-emptive measures to protect legal rights before family problems arise, likely because most people do not want to consider the breakdown of a relationship that is just beginning.
Some people may be more or less forced to plan in ways others are not. For example, community workers indicated that the legal complexities of family planning for LGBTQI people mean they are forced to plan family formation extremely carefully. Heterosexual people, on the other hand, are more easily recognized as parents, even following an unforeseen pregnancy.
Even so, there is value in encouraging family planning for everyone at the outset. Consultations revealed that a lack of planning for the emotional, physical and financial care of each family member, children in particular but also adults, was a major cause of family problems. Consultation participants suggested that access to programs, which would provide information and education on the legal aspects of marriage, would be an improvement. Some participants suggested that education and testing, similar to that for drivers’ licences, should be required prior to marriage:
“It would be ludicrous to allow individuals free rein to drive without training and education and following an accident bring them to task for failing to meet the requirements of the laws of driving. If the government and the courts are to be involved in the inter-personal relationships and family units of its citizens then advance knowledge of the expectations if that relationship fails is imperative in order for both users and the system to operate properly and effectively” – Ontario Native Women’s Association
Relationship between Users and their Lawyers
Most users had difficult relationships with their lawyers, when they had one, including
· Tensions around time and cost of legal services;
· Expectations about services;
· The adversarial nature of the relationship; and
· Their lawyers’ failure to consult them about decisions.
Many participants stated that, although they may have had a tense relationship, their lawyer was the most helpful person in the process.
Lawyers commented about
· The difficulty of estimating the cost of legal services; (other than a general estimate)
· The unreasonable expectations about and reluctance to pay costs by some clients ; and
· Overly emotional clients who wanted the lawyer to use aggressive tactics.
Despite concerns about lawyers, most unrepresented litigants do not choose to represent themselves, but do so out of necessity, usually because they lack the funds to hire a lawyer. The prevalence of unrepresented litigants causes undue delay and creates significant costs to the family justice system.
Responding to Children and Youth
The LCO conducted consultations with groups of youths, who gave their stories of their experiences within the family justice system, with professionals who work with youths and adults who shared their experiences of facing family problems in their youth.
Members of a Francophone group of older adolescents raised several issues, including:
· The organization of family relationships, gender role expectations, and how these factors may be a source of conflict within families; and
· Domestic violence and bullying in schools.
They expressed doubts about the effectiveness of anti-bullying programs.
Anglophone children 8 to 13 years of age revealed their firsthand experiences with family problems:
· One boy talked about being woken up in the middle of the night by his parents’ fighting;
· Two girls talked about having to call the police themselves for fear that their father would choke or badly hurt their moms;
· One youth mentioned that she had to stay in a shelter with her mom for a while after the separation;
· Another one mentioned that it was no surprise to her when her parents separated and that she was relieved when her father left;
· Many of the female participants expressed negative views of their fathers, many of whom had been violent towards them or their mothers, and used strong language to describe their feelings towards them; and
· Boys found it disturbing to hear girls use such strong language to describe their fathers.
All children had a negative perception of lawyers:
· They were particularly frustrated by the fact that lawyers either did not ask them for their opinions or, when they did, did not seem to hear them;
· One youth said “why should a one line e-mail cost one hundred dollars to my mother?”
· Another youth commented on the wait time in court. She thought that the court system did not work and should be completely redesigned;
· They were frustrated over not having their opinions heard in court because they were not of the requisite age; and
· They were dissatisfied with the legal system in general.
The youth also shared their coping mechanism in dealing with the anger, frustration and sadness brought on by family conflict. Some suggestions included: writing in a diary, confiding in people you trust and physical activities such as bike riding.
Participants identified factors that influenced the choice of entry points, including:
· How they perceived the issue, for example, as emotional, economic, legal or spiritual;
· The availability of financial resources, affecting whether they would seek professional assistance;
· Severity of conflict;
· The stage of the relationship; and
· Whether the other partner had taken steps to resolve the dispute.
Interpretation services, legal clinics working with racialized or remote communities, Francophone groups working in the area of domestic violence and collaborative family law practitioners working with Family Law Information Centres (FLICs) provided case studies.
This particularly poignant case study was provided by a culture and language specific legal clinic, and demonstrates the need for culturally sensitive services, and services in one’s native language:
Ms. Liu and her husband have been married for many years with grown up children. Neither of them works but they own a house where they live in separate rooms. They have tenants. Mr. Liu