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Reforming the Family Justice System: An Evidence-Based Approach

Noel Semple, PhD

Wednesday, December 18, 2013

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.