Breaking the Barriers to Family JusticeSana Affara
Tuesday, August 20, 2013
On July 22, 2013, the Law Commission of Ontario (LCO) released the final report for their Family Law Project: “Increasing Access to Family Justice through Comprehensive Entry Points and Inclusivity”. The report, which the result of over three years of consultation and study, makes a number of innovative recommendations and adds a welcome voice to discussions on family law reform.
The Problem with the Family Justice System
Obtaining a separation, divorce or dealing with child custody is a painful experience. It is emotionally, physically and financially draining. It is also a difficult period of adjustment, where individuals are forced to deal with the absence of their partner and the deterioration of their marriage all while adapting to new living arrangements. One of biggest challenges many people face during this period is navigating through the justice system. There have been a number of concerns raised about the inaccessibility of the family justice system due to its adversarial nature, inordinate delays and the unaffordability of legal services. It has often been argued that the family justice system should be the “last resort” in cases involving divorce and that other alternative dispute resolution mechanisms such as mediation should be used instead. This is because the family justice system can actually contribute to increasing emotional turmoil between the parties often leading to the escalation of disputes rather than their resolution.
The family justice system is also based on hegemonic family values. As a result the system has a difficult time accommodating the diverse family needs, structures and arrangements that exist in Ontario. Despite the complexities in any given case and the diversity in parties’ economic status, geographical location, gender, ethnicity, race, religion, culture, and sexual orientation, there is still a presumption that all the cases brought to the family justice system can be resolved in the same manner. This often results in individuals not only feeling isolated but also feeling excluded from the family justice process. Family law in particular, involves a specific understanding of the welfare of children, the trauma of separation and divorce, the consequent emotional and psychological changes, the diverse cultural expectations and family structures of various ethnic groups.
Making Changes to Increase Inclusivity and Accessibility
In an attempt to address these issues, the LCO Report provides some very useful and detailed information about the nature of Ontario families. It examines, in particular, the barriers faced by many Ontarians and emphasizes,
“… the need for the system to respond to the evolving pluralist nature of Ontario’s population, and addresses how factors such as literacy levels, cognitive disabilities and geographic location, among other characteristics, affect how easily people can access and use information, the affordability of legal representation and the degree to which legal problems are affected by other kinds of problems.”
One of the major recommendations made in the LCO Report is that the government create or enhance the multidisciplinary, multifunctional centres or networks that link with “trusted intermediaries” such as cultural centres.” These multifunctional centres will gather together a group of professionals that can assist with both legal and non-legal problems.
It is important to note that many family law problems are not just legal problems. They often connect to an array of other social and/or economic issues. The triaging of legal problems is one of the most efficient and cost effective ways of dealing with many family disputes. By focusing on this, the LCO Report adds to a growing body of research that suggests that it is no longer possible to address legal problems in isolation from other “non-legal” problems. For example, substance abuse, mental health and financial difficulties may in fact be at the root cause of the supposed legal problem. An effective family law system will help identify when litigants’ problems are not, in fact, legal and should be dealt with by other professionals.
Strengthening collaboration between lawyers, social workers, and financial professionals, among others, who can find practical and long-lasting solutions for different family situations, is a more efficient way to deal with family issues.
Law Commission of Ontario, Increasing Access to Family Justice through Comprehensive Entry Points and Inclusivity (Toronto: February 2013).
Action Committee on Access to Justice in Civil and Family Matters. Meaningful Change for
Family Justice Beyond Wise Words. Final Report of the Family Justice Working Group of the Action Committee on Access to Justice in Civil and Family Matters (April, 2013).
Brownstone, Harvey. Tug of War: A Judge’s Verdict On Separation, Custody Battles, and the Bitter Realities Of Family Court. (Toronto: ECW Press, 2009).