Revisiting the LCO’s Family Law Final Report Seven Years Later

This past Saturday I had the pleasure of meeting with students in McMaster University’s Justice, Political Philosophy and Law Program (“JPPL Program”) at a Wine and Cheese “Industry Night” organized by the JPPL Student Society. Not surprisingly, many students, although not all, anticipate applying for law school after completing the program. I was one of 10 panelists (!) with a range of experiences in law asked to give the students some idea about our own backgrounds and then answer a specific question drawing on that experience. In my own case, the organizers asked me to tell the students something about the Law Commission of Ontario (of which I was the Founding Executive Director from 2007 to 2015). We then mingled with the students — who are bright, articulate, enthusiastic, curious and destined for terrific things, based on my experience with them.

We had each also been asked to prepare another question — no one will be shocked that our interest in ourselves and the time taken to answer the first questions meant we didn’t get to it. Mine was on the LCO’s family law report. Preparing motivated me to review it again after I hadn’t looked at it for some time.

I started rereading it on February 28th — by coincidence the seventh anniversary of its release on February 28th, 2013. I was curious about how the LCO’s recommendations had held up and what still needed to be done to make the law more accessible and effective for those embroiled in family disputes. (Disclosure: while I was involved in all the LCO’s projects when I was executive director, I was more engaged with the family law project than most, especially the final report which I had a major role in drafting for the LCO’s Board of Governors’ approval.)

During the various stages of our family law project, we heard from over a hundred individuals and organizations and received many submissions, including from those playing a role the legal system and the users of the system, as well as those who interacted with the system in a different professional capacity. (Benefiting from the legal profession, the judiciary, law clinics, government, community groups and people with entirely different expertise was something our researchers and I particularly appreciated in many of the LCO’s projects.) We assembled an advisory group who stayed with us through the length of the project. All these contributions helped us identify the direction of the project and map out our recommendations.

We created benchmarks we applied against the system as it was then and then later applied against our recommendations. These provided the context against which we worked and allowed us to have some security that our recommendations would respond to the gaps we found and the improvements we wanted to make.

In our view, based on our research and consultations, an effective entry to the family law system would be defined by the following characteristics:

» provides initial information that is accessible to people in their everyday lives, including information about possible next steps in their efforts to resolve their dispute;
» to the extent that the information is provided on line, provides it through a single“hub”;
» provides written information that is accessible to those without adequate access to the internet;
» provides assistance for persons who might have difficulty accessing, reading, understanding or applying the information;
» helps an individual determine the nature of their family problem(s) in a timely and effective way,
including whether their dispute “really” is a legal dispute;
» assists individuals to find the approach to resolving their problem that is as simple and timely as possible, minimizing duplication of persons and institutions with whom the individual must deal and
promoting ease of communication and collaboration between different actors in the system (this refers to a “triage” system that assists in allocating resources according to priorities);
» has the capacity to respond to different educational and literacy levels; the existence of domestic violence; and factors such as cultural norms, Aboriginal status, gender, sexual orientation, [and now I’d ad gender identity], age, language, disability, geographic location and other major characteristics;
» develops programs and policies in consultation with affected communities;
» takes into account the financial capacity of individuals while ensuring the quality of service;
» recognizes and responds to the multiple problems that accompany family problems, such as
mental health or financial problems that may be a stimulus for or exacerbate family legal problems;
» offers a “seamless” process from early stages to final resolution; and
» is based on a sustainable model. (LCO, Family Law Final Report, p.11)

We found the system as it existed from when we began our project up to finalizing it failed to meet the benchmarks. (There had been a number of studies over several years that revealed the weaknesses of the system and despite changes and reforms, there remained obstacles for many people.) The LCO Interim Family Law Report and the Final Report provided detail about the difficulties; I merely summarize them here.

We knew that there were many sources of information about family law that people might access deliberately or by chance as they scoured the internet for help and we knew that, while some of it was helpful, some of that information was not correct or was outdated and quickly became difficult to understand, navigate or apply to their own situations. Generally, the information was not particularly helpful for those not familiar with the legal system or who faced barriers of various kinds (information from community groups directed at particular issues or communities tended to be more responsive in this regard).

Successful examples of collaboration between legal actors and legal and other actors existed, but these usually addressed a particular problem or community. There was some free or low cost assistance on hand, but much of this was associated with courts; this was good for those seeking advice at courts or planning to go to court, but not for those who were averse to approaching courts. Options other than lawyers were available, but these alternatives could not address more complicated matters and lack of adequate assistance meant too many unrepresented or self-represented litigants at later stages.

The title of the report summarizes its main themes: Increasing Access to Family Justice through Comprehensive Entry Points and Inclusivity. The project’s focus was on the initial entry into the system, when people start wondering if they have a family law problem and what they might want to do about it. The goal was to design a system that would serve to triage the concerns of family members at the earliest stages — and to develop a means that would respond to the disparate issues that arise in family disputes (or led to the disputes or made them worse). A better understanding of problems early on bodes well for more effective outcomes later.

We were concerned about the various barriers facing those seeking assistance from the legal system: economic status, race, Indigenous status, gender, sexual orientation, gender identify, disability, the changing nature of the family, geographic location, literacy, language. We were conscious that people initially approach many different kinds of people and institutions or organizations for help, some of whom are part of the legal system, some not.

We recommended a number of discrete reforms that would be preconditions for our final and major recommendation. For example, we recommended placing basic information in the form of a bookmark about how to find information and assistance in places people frequented, such as doctors’ offices or community centres. We also recommended that various legal actors collaborate in creating a central “hub” with information that responded to Ontario’s diverse population and allowed interaction with people who could assist those with difficulty in navigating or applying the online information. It also needed to address specific issues, such as intimate partner violence (there were and are various sources about this that needed to be incorporated into the hub) and cultural issues. For the purpose of the project, the goal of the information would be to help people decide whether they had a legal problem, some preliminary sense of its underlying causes or issues and how they wanted to proceed initially.

Recognizing that many people seeking legal help with family problems will rely on themselves to navigate the system, we recommended improvements in self-help tools available in various locations, such as community centres or libraries, along with ways to access in-person assistance. By the time we had finished our project, Community Legal Education Ontario (CLEO) had received funding to undertake a review of how effective self-help tools are (see here).

We believed that instituting a greater and more systematic role for “trusted intermediaries” would be a significant reform for people whose familiarity with the legal system was minor or non-existent. We relied on a definition of trusted intermediaries provided by Karen Cohl and George Thomson in a study they prepared for the Law Foundation of Ontario:

organizations that focus on social services, services to people with disabilities,
immigrant settlement, health care, education, advocacy or a particular faith or ethno-cultural group. They also include agencies that serve the public generally such as libraries, community centres, information and referral services, and hotlines. (Cohl and Thomson, 44)

Trusted intermediaries, often already known from other contexts by those who now need family law assistance, who received (as necessary) appropriate training and information could play a larger role at beginning stages, helping people face challenges posed by language and culture, for example. Again, as we finished our report, there were already initiatives in this regard (see, for example, Connecting Ottawa, which was founded as a pilot to provide integrated services to Ottawa’s linguistic minorities and which continues to link lawyers and non-legal community partners).

We suggested ways in which availability of legal assistance could be extended, recognizing that not everyone who required it, would be able to afford a lawyer or would be eligible for legal aid. Keeping in mind we were focused on early stages, we considered greater support for limited scope retainers or unbundled services, which the Law Society of Upper Canada (now Law Society of Ontario) had recently recognized in the Rules of Professional Conduct as an acceptable form of practice (see here). We also recommended increasing legal aid eligibility, providing law students more extensively in family law (undertaken with care to services provided and supervision) and consideration of a limited paralegal role in family law.

As I noted above, these recommendations were intended as pre-conditions for the LCO’s major proposal woven around a “holistic approach”: multidisciplinary, multifunction centres or services. These centres or services would constitute entry points for people seeking assistance with family problems. The process could be entered from a cultural community centre, religious advisers, a hospital, a legal clinic, a private lawyer, a paralegal and many other organizations made aware of the process. Wherever an individual made an initial overture, the individual could be linked to the multidisciplinary centre.

The initial step would involve triage run by appropriately trained intake personnel who could identify whether the problem was a “legal” problem, whether it could be resolved by assistance outside the legal sphere or whether it needed to move onto a legal track. This step would also take into account the particular needs of the individual (such as cultural concerns, degree of literacy and so on). The intake worker would be able to direct the individual to appropriate resources, which would operate as a network. Even if a problem is initially identified as a non-legal problem, it could be slotted back into the legal track if appropriate later. Or it might turn out that with the non-legal assistance provided, an individual on the legal track might find family breakup is not necessary. The other services would be financial, help with employment, responses to domestic violence, psychological and others. The centres or networks of services would constitute a comprehensive approach that would be characterized by the following:

● incorporates inclusivity,
● provides effective access to information and self-help tools,
● provides options for service delivery by lawyers,
● provides services from other legally trained persons,
● incorporates trusted intermediaries,
● recognizes that family law problems may be caused by, accompanied by or be exacerbated
by problems of other kinds, and
● is systematically inked to later stages of the family law process. (LCO, Family Law Final Report, p.89)

While a centre could be “bricks and mortar”, using existing buildings (perhaps expanding existing multifunction centres as required), the proposal contemplated that they could also be virtual, relying on effective communication mechanisms to build networks of legal and non-legal entities (with human being available at different points). The linking of existing services would add service value at little cost, for example. We acknowledged the nature of the centres and the ability to expand them would rely on the availability of government financial resources and the capacity of other institutions to collaborate. The LCO Final Report therefore advised the government and partners create the centres or services (perhaps best thought of as networks) on the basis of progressive realization. Progressive realization is a concept adapted from the United Nations that defines the parameters of expectations relating to states’ human rights obligations (see here; p.13 includes and explanation of progressive realization and relevant statements in UN human rights treaties). Progressive realization would require the government, with the collaboration of legal and non-legal partners, to establish the goal of the centres or networks and then to implement them as resources allowed; however, the government would be obliged to indicate what else need to be done in order to achieve the ultimate goal.

The LCO recognized establishing a comprehensive, systematic network involving legal and non-legal actors, responding to the great diversity among people wanting help with family problems, both legal and non-legal would face challenges. Apart from requiring the application of the principle of progressive realization, a disciplined and ongoing mindset not always evident in government undertakings, this approach would also need evaluation at different points. Not only was the goal intended to be a systematic and inclusive system, but the method would have to be consistent, each step working towards the goal. Evaluation would allow tweaks and adjustments along the way. This approach would also demand the collaboration of some heterogeneous actors who would have to put aside or resolve disagreements and accept that they all have something crucial to commit to the success of the project.

Probably needless to say, these recommendations were not adopted by the government. As I indicated above, there are smaller, more focused examples of multifunctional or multidisciplinary centres in existence (several are discussed in the Final Report over pp. 75 to 82). A more comprehensive system for family law, even limited to entry points is a more ambitious undertaking. However, radical change is required in family law. Despite the reforms, the endeavours of various legal system entities, the discrete attempts to provide multidisciplinary assistance, all the efforts of the National Self-Represented Litigants Project (NSRLP), including the resources provided or the lists of lawyers prepared to coach unrepresented litigants, the family law system has not been able to respond to the needs of too many people enmeshed in family law disputes, to the detriment of both users and the system.

There are still a significant number of self-represented litigants in family law (over 50% of litigants), including those who must muddle their way even at the initial stages of figuring out their problem — or whether they really have a problem. This can have significant repercussions later in the process. (A recent consideration of the issue, including some responses, appears here.) Since the LCO’s Final Report, there has been more research into the role of the trusted intermediaries who would provide a significant link in the comprehensive centres model (see, for example, CLEO’s work in 2018 here and in 2019 and forthcoming here).

To address the difficulties facing unrepresented people with family problems, from the early to later stages, complementary legal services are required. The question of whether paralegals should play a perhaps limited role, but a role, remains controversial. Former Chief Justice Bonkalo, undertaken at the behest of the Attorney General of Ontario and the now Law Society of Ontario, included a recommendation about paralegal family law practice in her report Family Legal Services Review. As part of its Family Law Action Plan, the LSO “is developing a [licence to permit appropriately licensed paralegals and others to assist the public with certain family legal limited] services”. According to its submission to the Ontario Government regarding expanding family law services in 2016, funding from Legal Aid Ontario has also meant student clinics have been able to offer family law services, “including some that are focused on vulnerable client groups and others that support holistic service delivery through working with community hubs or agencies, or by providing a combination of law and social work services”.

One issue that the LCO’s Family Law Final Report considered to some extent is the use of advanced technology. If it were undertaken today, a family law project would need to address this issue more fully, since the importance of technology in law generally, including in family law, has increased considerably since then. In particular, although there was considerable online information available when we undertook the project (we discussed it in detail), there is more now, such as Steps to Justice, a collaborative endeavour, which provides information about a wide variety of legal areas, including family law, and which provides a limited on-line chat option, and the Ryerson Legal Innovation Zone’s Family Law Portal. There is not yet a single hub, however, since each organization believes it can provide the most effective online information. It would be better if organizations could collaborate (this was the intent of Steps to Justice) and then provided a link on their own websites to the same information.

Although some of the factors posing challenges to the use of technology we identified in our report may be less significant seven years later or are being addressed (such as the spread of high speed internet in rural areas of the province), issues remain for people who lack access to computers or computer literacy, for example, among other barriers. Yet we increasingly expect everyone to rely on technology (we discussed in person services provided by government in the report, many of which are connected to the court system). It is still crucial to ensure the use of technology assists users and does not hinder them. Too often in person assistance is hard to find, yet barriers continue to exist for some people even if they may be gradually disappearing in some instances. Although issued four years ago, Draft Guidelines for Using Technology to Advance Access to Justice and its accompanying Background Paper, prepared under the auspices of The Action Group on Access to Justice, facilitated by the LSO, may still be helpful in this regard.

What is common to almost all the more recent initiatives is that they are discrete, even the collaborations, occupying their own niche. They provide a plethora of different forms of assistance, including assistance meant for specific communities. And there is no question that they can be helpful. But if the challenges of family law are to be addressed, it seems to me that more dramatic change is required. Having taken the opportunity to think back about the LCO’s recommendation for comprehensive — collaborative — networks, I remain convinced these are a viable way — over time — to serve the diverse needs of more people more readily and effectively. While “over time” may seem discouraging and non-responsive to the urgency family law reformers talk about, we have tended to reinvent the wheel or watch different actors offer similar solutions, while the centres or comprehensive networks offer a path towards a specific goal without duplicating efforts. They have the potential to meet the benchmarks that (I continue to believe) reflect what many actors want in an effective family law system more successfully than ad hoc, discrete reforms do.

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