Looking for the Access to
Justice Research Network
(AJRN)? Click here

Reforming the Family Justice System: An Evidence-Based Approach

Family courts are at the epicentre of Canada’s access to justice problem.  Every weekday over 700 new separation-related cases commence in this country. [1] These cases involve Canadians from all walks of life.  Disputes over child custody and access and child support obligations are especially common, and they can have profound impacts on separating adults and on their children.

The cost of justice is often very high for separating families.  The minority who have the benefit of counsel often confront five-figure legal bills. [2] Self-represented parties, who are now the majority of family court users, often struggle to navigate a system that is often perplexing and sometimes hostile. [3]

The increasing prevalence of self-representation and continued public sector austerity are forcing governments to rethink the family justice system. [4] Recently, the Ontario Chapter of the Association of Family and Conciliation Courts asked and Professor Nicholas Bala and me to prepare a report that proposes a path forward for policy-makers.

We began by identifying the goals of the government in responding to family relationship breakdown. In short, governments today seek to advance children’s interests, and protect adults’ rights, in a cost-effective manner.   The extent to which these goals can be realized in any given case depends largely on the behaviour and circumstances of the parties. However, state policies and resources can make important contributions.

The government policies that help the best-positioned cases to achieve the best outcomes are not the same as the policies that work to protect basic rights and interests in the worst-positioned cases.   For example, mediation is a proven technique for settling cases and improving communication between separating parents, but only if there is a baseline ability for the parties to communicate.  In the significant number of family court cases with domestic violence and high conflict, mediation can be useless if not dangerous. [5] Authoritative, enforced adjudication is necessary in these cases.

Here are a few key findings from the report:

  • In adjudicating family matters, courts must decide how far to stray from time-honoured civil procedure principles with innovations such as specialized judges, case management, and inquisitorial procedure.
  • We need to do a better job spreading awareness about mediation—research suggests that it’s not consistently “on the radar screen” for separating people. [6]
  • It’s also important that mediation services offered to parents give them a genuine opportunity to create their own parenting plans.
  • Governments that are not prepared to provide full legal aid certificates to family litigants often look for more affordable ways to assist them.  New internet information campaigns and mandatory classes for court users can be cost-effective solutions.  However, self-represented litigants have told researchers that they need more process-related information to complement the reams of doctrinal material now available on the internet.
  • There is no perfect substitute for face time with an expert, and innovations such as limited–scope retainers and staffed information centres for self-represented litigants offer governments new ways to deliver this benefit.

Access to family justice scholarship is enjoying a renaissance in Canada, spearheaded by the Action Committee on Access to Justice in Civil and Family Matters, the Law Commission of Ontario, and the National Self-Represented Litigants Project.  Our report sought to contribute practical, evidence-based suggestions for provincial policy-makers.    To read the full report, please click here.

Noel Semple is a Postdoctoral Research Fellow at the University of Toronto where he is a Visiting Scholar in Centre for the Legal Profession. He is also a member of the Cost of Justice Research Alliance.

Why the Cost of Not Resolving Legal Problems May be Greater Than We Think

There is plenty of research evidence of the significant intangible costs of the lack of access to justice. Every legal problems study examining the issue has shown that physical health problems and stress-related illness are common consequences of experiencing legal problems. The Canadian research shows that about 23% of respondents with at least one justiciable problem experienced a physical health problem as a result of the legal problem or problems and 37% experienced a stress-related health problem.[1] Further, 62% of respondents said that the problem was somewhat to extremely disruptive to their daily lives.[2]  The stress these problems cause may have consequences that are magnified far beyond the difficulties in dealing with a particular legal issue.

A recent book on the dynamics sustaining poverty by Sendhil Mullainathan and Eldar Shaffir argues that the stress involved in coping with money problems has a significant and debilitating effect that reduces people’s ability to cope with other ordinary tasks and requirements in all areas of life.[3]  Using their metaphor, stress reduces the “bandwidth” available to deal with other issues. Following this argument, it is possible that the high levels of stress experienced by people dealing with legal problems may have a similar debilitating effect, reducing the bandwidth available to deal with a range other normal issues in life.  Reduced bandwidth may be a partial explanation for the trigger and cascade effects reported in the legal problems literature. Legal problems trigger other legal problems and legal problems trigger, and are triggered by, a number of non-legal problems producing inter-related problem clusters.[4]   The research by Mullainathan and Shaffir may partly explain the mechanisms underlying the trigger and cascade effects linking the experience of legal problems to broader patterns of poverty and social exclusion.

As troubling as high levels of stress and stress-related illness may be as consequences of legal problems in their own right, the intangible costs of experiencing legal problems may also lead to significant monetary costs. We can easily think of some of these. Costs to individuals can occur in areas such as lost employment or lost time from work.  Individual disadvantages can become costs to the state occurring, for example, as increased health care costs because people reporting high levels of stress say they visit doctor’s offices and other health care facilities more frequently than normal. They can also occur as increased payments for employment insurance, housing subsidies or other special services.  As well, the money spent resolving complex legal problems is money not available to be spent elsewhere in the economy. However, these costs may be only the tip of the iceberg. The reduced bandwidth argument by Mullainathan and Shaffir suggests that the consequences and costs of experiencing legal problems may bleed out in ways we have not yet fully considered. It may seep in to other areas in the lives of the individuals experiencing the legal problems and from those individuals into the lives of others who are socially connected to her or him through relationships of dependency.  It may turn out that as we research these costs more fully, that the cost of expanding access to justice to all Canadians is far exceeded by the costs of not doing so.

Ab Currie is a Senior Research Fellow at the Canadian Forum on Civil Justice