October 19, 2014 2:20 pm / Leave a comment / Edit
III. The Family Law System: An Overview with a Focus on Entry Points
A. Introduction
Although our project focuses on entry points to the family legal system, it is necessary to understand how these entry points relate to the rest of the system. The first part of the description of the system therefore briefly outlines the whole system, including entry points which are dealt with again in greater detail in the second part.
There are several challenges in describing and assessing Ontario’s formal family justice system. There are many actors involved and there is a fragmentation of services. This fragmentation can be a result of the way legal information is organized and the way legal assistance is provided to low income persons. The organization of the courts and the multiple forms of non-judicial dispute resolution are another factor. In Ontario the diversity of community organizations linked to the system is another reason for local differences and sometimes a fragmentation of services. In addition, there are many public and private family counseling services.
Family law in Ontario is an area of specialists. For our purposes, it is sufficient and preferable to describe the system in broad strokes rather than become mired in detail that is only peripherally relevant to the focus of the project. We also highlight the positive aspects of the system and describe the challenges it faces. In the next two chapters we will propose reforms to address these challenges.
Any description of the current system must include a description of the reforms put in place over the past two years, some of them following recommendations of reports and analyses of the system. Family justice has been a main focus of the former Attorney General during this period, the Honourable Chris Bentley. The Family Law Act[106] and the Children’s Law Reform Act[107] were amended, including with respect to restraining orders, more sworn or affirmed information (including about domestic violence, child protection involvement and criminal charges) when determining the best interests of the child, annual financial disclosure obligations for child support, and the division and valuation of pensions following marriage breakdown.[108] While these are not directly related to the focus of this project, they should be mentioned because they affect matters which are relevant to making entry points effective and responsive.
Building on several reports about the family justice system and pilot initiatives for procedural family justice reform in 2010, the Attorney-General of Ontario announced four interconnected pillars of reform:
◾Pillar 1: Providing early information for separating spouses and children;
◾Pillar 2: Providing opportunities to identify issues and directing parties to appropriate and proportional services;
◾Pillar 3: Facilitating greater access to legal information, advice and alternative dispute resolution processes;
◾Pillar 4: Developing a streamlined and focused family court process.[109]
With the four pillars as the starting point, the following services were expanded throughout the province in 2011:
◾Family Mediation Services, including an on-site and off-site component. Onsite mediation services are available to deal with narrow issues for parties on that day’s court list, and are free of charge. For parties with more complex issues or who require more than one session, off-site mediation services are available for a fee based on income and number of dependants.
◾A Mandatory Information Program (MIP) that helps families learn about the effects of separation on children and adults and the options available to them to resolve their disputes.
◾Information and Referral Coordinators (IRCs) at the Family Law Information Centres (FLICs) who provide information about family mediation, effects of separation and divorce on children, and make referrals to community services.
The implementation of these initiatives will be discussed in the remainder of the discussion in this Part. The first three pillars are related to some of the entry points we have identified in this project and we analyze the implementation of the pillars as they relate to the specific entry points.[110]
B. The Current System
The following description of the family law system roughly follows the “usual” path of someone seeking to have his or her family problem addressed by the legal system: the effort to obtain initial and then more advanced information, the seeking of legal or other expert assistance, attempts to resolve the dispute(s) short of going to court and, in some cases, using the court for a definitive resolution of the dispute or some portion of it. This way of describing the system is somewhat artificial, since people are likely to seek information throughout, may avoid non-judicial forms of dispute resolution, and may not only go to court but return to court; however, it permits us to identify the issues that need reform by placing them in a complete context.
1. Provision of Information and Advice
Although people may begin by talking to their family and friends about their family problem, eventually they are likely to seek information in order to help them decide whether they want to take their problem further. At some point, those who decide to do so will be looking for information about the system itself. We explain about the range of information sources and kind of information available here. Obtaining information is likely the first “entry point” to the formal system.
Any problems relating to information do not include a shortage. There is a great deal of information available from a variety of sources, some outside the system and some within it. It is provided online, in written form and in person.
Public (legal) information can potentially play an important role in helping people make informed choices. The information needs of people change as they move through the system. Initially requiring basic information that helps them choose among options for resolving their problems, they subsequently need more in-depth information about how to navigate the option they select. At this point, the information will be more complex and can likely be “interpreted” only with the assistance of a trained professional. Public legal information is often available in brochures, and increasingly online.
The first pillar of the Attorney General’s recent reforms recognizes the importance of early information for separating spouses and children. In 2011 the first pillar reforms have expanded Family Law Information Centres to more courts and introduced a Mandatory Information Program before disputants can access the court process. These instruments will be discussed below. There are constant efforts to develop and improve early information, so that any description of all the sources can only refer to the situation at a certain moment. For example, sources of early information recommended by the Home Court Advantage Initiative included awareness campaigns, brochures and websites which may be developed in the near future.[111]
Close to their communities, individuals may be able to obtain face to face information from workers who can be described as “transitional workers” or “trusted intermediaries”. They can be based, for example, in community organizations or band offices or shelters. For individuals who have literacy problems or are not used to dealing with a legal process, these trusted intermediaries often “translate” into everyday language the written and on-line information which is available through public legal information. The intermediaries can also assist individuals in contacting specialist providers of information and advice.
These workers face several challenges, however:
◾Access to these entry points may be difficult for individuals as a result of disability, language, culture or distance and the relevant community organizations may need to invest in outreach and accommodations in order to provide the information.
◾Community workers are not legal experts.
◾Continuity of services is highly important, perhaps particularly for marginalized persons who are most likely to access community level services. For example, if community services are available, but a user does not have access to a lawyer who can respond to special needs, access to justice may be difficult to achieve.[112]
Online information is available from many sources. The information varies from basic information to more detailed information such as “online forms assistants”, which allow users to fill out Ontario Court Forms with an explanation of legal concepts.[113] Although a number of publications on the federal and Ontario government websites were not developed for online users, more recent information has been explicitly designed for interactive use on the internet. In early 2011 the Law Commission of Ontario counted nearly 700 pages of public information in Ontario which were available through more than ten internet sites.[114] Most of the publications can now be accessed through the website of Community Legal Education Ontario (CLEO).[115]
The main Government of Ontario website functions as a first source of online information. It has a “life events” bundle of information about separation and divorce. These bundles of information act as a front door to information within the provincial government about a topic.[116]
The Ministry of the Attorney General’s website functions as a main hub for public legal information on Ontario family law. It consists of two sections on family law. The first part of Justice Ontario contains a list of questions and answers on family law.[117] The second part is entitled “Separation and Divorce” and contains more general information. As mentioned, the Ministry of the Attorney General has also developed the Ontario Forms Assistant which allows users to complete the most frequently used family law forms. Once a user selects a form, the program leads users through a series of plain language questions. The Forms Assistant uses the answers to populate the court form. The forms can be printed and saved.[118]
The Attorney General’s website also contains lengthier publications, such as ”What you should know about family law” which was first published in 1999 and updated since.[119] Other material includes “‘Helping Children and Youth Live with Separation and Divorce”. There are also federal materials, which can be accessed online, such as “Divorce law – questions and answers”, first published in 1986 and updated in February 2006.[120] Furthermore the Department of Justice’s Supporting Families Initiative offers information for parents and children.[121] Canada Benefits has a section on Divorce or Separation with an application kit.[122]
Legal Aid Ontario launched a Family Law Information Program (FLIP) in March 2011. FLIP is available on Legal Aid Ontario’s website, and uses both audio and text. The goal of this online program is to help users make more informed decisions about the legal and emotional issues resulting from the breakdown of a relationship.[123] FLIP provides information on legal and practical issues related to separation and divorce, the court process and resolution methods. It also suggests that although using methods of resolution other than courts is desirable, sometimes going to court is the only realistic option.[124] In addition to legal issues, the site also discusses personal and interpersonal issues that adults and children may experience when relationships break down and describes resources and strategies that may provide assistance.[125] The program takes people through the various steps and issues in “bite-size” segments that show diversity in families. At the end of the program, users can print a certificate of completion directly from their computer. The website indicates that clients of Legal Aid Ontario may be required to produce the certificate to show that they have completed the program. The content of the FLIP is very similar to the content of the Ministry of the Attorney General’s Mandatory Information program.
Other organizations have developed concise plain language information with public funding. CLEO[126] and Family Law Education for Women (FLEW)[127] post plain language publications on family law, offered in several languages and formats. In addition they have specific information for victims of domestic violence or situations of child abuse. FLEW offers family law information designed for immigrant, refugee and non-status women, Aboriginal women, Francophone women, immigrant women who undertake domestic work and are caregivers, Jewish women, Muslim women, women of Christian faiths, women with disabilities and Deaf women (in audio, ASL, braille and large print).[128]
Basic information provided by community organizations and through written and online information needs to be followed up by more in-depth (summary) advice. Many sources of early information advise people to seek a lawyer’s advice.[129] For example, FLEW advises: “When your relationship ends, you should have a lawyer who knows family law to help you. If you do not get legal advice, you may give up some important rights that you do not know you have.”[130] FLIP also states that “[i]t is important to get legal advice about your separation or divorce”.[131]
In practice many users will receive their main point of entry information and summary advice from legal workers, including private lawyers. Although paralegals in Ontario formally do not offer family legal services, as will be discussed below, in practice individuals may seek a paralegal’s advice, in particular for simpler, uncontested cases.
Independent legal advice may be necessary at different stages of the process, initially as a source of information and subsequently as a source of advice and/or representation, regardless of the form of dispute resolution selected. There is a practical but also a legal difference between general legal information and independent legal advice in a concrete case. A legal adviser can normally not give independent legal advice to both parties in a legal dispute, because of a potential conflict of interest.[132] In some cases this means that, for example, legal workers in legal clinics can only give advice to one person in a family dispute and would have to refer the other person to other providers of legal services, if available. However, we note that the 77 legal clinics funded by LAO,[133] which offer services closer to the communities, do not, in general, offer services in the area of family law, as family law is often too specialized, complex and time-consuming. In practice, legal clinics can play a referral role in the area of family justice.
For those who are able to afford it, retaining a lawyer will be the most effective way to obtain information and advice about complex matters. It is also possible to obtain summary information or legal consultation at an early stage by telephone. For example, the Law Society of Upper Canada offers a lawyer referral service for a 30-minute free consultation, during which parties can explain about their legal issues and hear about their options.[134] There is no financial eligibility criterion for this service.
Legal Aid Ontario offers a telephone-based Client Service Centre, in which eligible clients may speak with a lawyer for up to 20 minutes of summary legal advice and information. In April 2011 the eligibility criteria were based on income and family size, which ranged between an annual gross income of $18,000 for a single person to $43,000 for a family of five or more.[135]
The provision of other subsidized legal information, summary advice and legal advice in family cases in Ontario is mostly offered through the court house. We observe that there is an increasing focus on the family court house as the entry point for information and summary advice for users.
At the court house individuals can obtain general point of entry information and non-legal summary advice services through an Information and Referral Coordinator (IRC) at the Family Law Information Centre (FLIC). The IRC’s services can be accessed on a voluntary basis and are free of cost. The IRC provides information on alternative dispute resolution options, issues related to separation and divorce and community resources and referrals to court-annexed mediation services and to the free Mandatory Information Program for parents who want to access the court process. The role of IRCs has been strengthened and these services have been expanded to more court locations as part of the recent reforms. Bala points out that that the extended use of IRCs (at the FLICs) can have value for unrepresented individuals, but expresses his concerns about the qualifications and resources of IRC’s, and considers it, at this stage, not appropriate to make a meeting with an IRC mandatory.[136]
The Mamo Report extensively described the FLICs over the period 2003-2006. The authors were concerned about a lack of consistency and sometimes a lack of essential facilities in the FLICs. For example, opening hours and physical space varied significantly at the time of their research. Most FLICs did not have a child-friendly area. The staff worked part-time and there was limited cooperation with community organizations. There were not always computer terminals.[137]
The LCO’s consultations in 2010 also showed that there were still important differences among FLICs and the participants’ experiences were mixed.[138] For example, one FLIC had a social worker on site, had an extensive network with community organizations to which it could refer users, had a quality control mechanism and could assist about 48 users per day. Other FLICs, however, had very limited opening hours and no meaningful legal services connected to them. It was also mentioned that one FLIC focused more on the court process than on collaborative procedures.[139] French language capacity also varied.[140]
Jacobs and Jacobs noted concerns of professionals that the FLICs are intimidating for some users. Professionals also contend that a referral to a FLIC is part of an adversarial approach and others were not convinced about the usefulness of the services provided by a FLIC for the particular needs of a client.[141] People in smaller cities reported unease about the public visibility of going into the courthouse, where FLICs are located.[142] The LCO’s respondents noted similar concerns about privacy when they visited the FLICs.[143]
Family court locations that still do not have separate FLICs after their expansion to more sites, do have other sources of information, including publications about separation, divorce and child protection issues (for example, “What You Should Know About Family Law in Ontario” in nine languages; the Ministry’s Guide to Family Procedures; information about legal services, the court process and court forms); and at certain times a Legal Aid Ontario Advice Lawyer is available.[144]
As of 2011, if either spouse/parent has started a family court case, both spouses/parents must attend the Mandatory Information Program (MIP) available at family court locations across Ontario as the first step in the case. There are a few exceptions to the mandatory attendance requirement, including when parties are proceeding on consent or when the only claims made are for a divorce, cost, or an order incorporating the terms of an agreement or prior court order.[145] Like Legal Aid’s Family Law Information Program, the MIP provides individuals with information about separation/divorce and the legal process, alternatives to litigation, family law issues, the Family Court process and local resources and programs for families facing separation and/or divorce. The information goes beyond “the law” and covers issues such as constructive communication between parents, a parenting plan and overview of resources for creating and implementing a parenting plan. The program is given by a volunteer lawyer and a volunteer social worker. They can give general information, but there is little room for individual advice.
Low income individuals can access legal information and advice services provided by legal aid advice lawyers and duty counsel at the courts. The advice lawyer’s and duty counsel’s advice can prepare individuals for concrete steps in the court process, as will be discussed later, but in the earlier stages of a dispute the information also allows individuals to make choices about the methods for dispute resolution, including non-judicial dispute resolution.
Thus there is, as shown above, a great deal of information which is available in different formats. It is not entirely clear how effective each of the formats is, however.
The workers who were interviewed for the Mamo Report expressed doubts about the effects of the written information which was available at the courts’ FLICs. Although the quality of the materials was not questioned and some publications were popular with users, “[t]he utility and possible effectiveness of pamphlets/brochures compared to the cost of producing such materials should be reviewed to ensure that resources are being used effectively”.[146] We agree with the need to review, at regular intervals, the effectiveness of the public written information in light of the various user groups.
The written sources of early information may contain some duplications and some public information may be lengthy or in need of a more modern format. However, publications can have multiple user groups and be effective in several ways. Some materials, for example those developed by CLEO, may not only be used by individuals, but also by community legal workers or pro bono students, in order to assess legal problems and to give general information to their clients. The materials developed by FLEW give specific information for women belonging to various communities and may address the specific information needs of these women. We note, however, that there are not similar materials developed for men.
While the individual sources of written (audio and other format) information may address the needs of specific user groups, when they are offered online they become part of a vast amount of information that can be hard to access without a clear entry point. The LCO’s own review of the various websites with family law on-line information revealed that it was often complex and detailed and, in the case of the Ministry of the Attorney General’s website, at least, highly reliant on legal language. For example, a user who accessed the section about “family law” on the Ministry of the Attorney General’s Justice site would see as the first question “I want a divorce. What do I do?” The answer immediately directs the user to complex information on court procedures which consists of nine guides. In total, there are about 50 pages with complex information.[147]
The challenges in Ontario’s provision of public on-line information are not unusual. The 2010 Organization for Economic Cooperation and Development (OECD) report, The Future of the Family to 2030, describes the “failure of e-government” for families: “Most e-government websites have a lot of information – the shop window – perhaps even too much information online”.[148]
Listening to Ontarians found that most respondents were unaware of public online resources.[149] Until March 2011, when Legal Aid Ontario launched FLIP, only very few users accessed the written information provided or funded by the government or LAO. Only one in eight of the persons surveyed had heard of any of the government sites mentioned. During the LCO consultations, it was nevertheless mentioned that, in comparison with other sources of information, provincial and federal government websites were the best known. It was recommended that web pages should not be overburdened and should have clear links corresponding to people’s needs,[150] which may be an indication that the information did not meet users’ expectations in this respect.
ontariofamilylawanalyses 