The Problem of Supporting Family Law Research: Creating a National Research Fund

The Canadian Research Institute for Law and the Family closed its doors on 31 August 2018, largely as a result of its inability to make up the shortfall in its revenues from sources other than its primary funder, the Alberta Law Foundation. This reduced the number of national organizations conducting original social science and legal research on the impact of laws on Canadian families from one to none.

Perhaps as a result, noted lawyers Melanie Del Rizzo and Wayne Barkauskas, the current and former chairs of the Canadian Bar Association’s national family law section respectively, have tabled a resolution for the upcoming CBA annual general meeting on 11 February 2019. “Safeguarding Family Law Research” (CBA membership required) calls on the federal, provincial and territorial governments to “allocate sufficient funding resources to family law research … to guide policy makers and the profession to optimize benefits and access to justice for families experiencing relationship breakdown.” As the former executive director of CRILF, I am grateful to Del Rizzo and Barkauskas for their initiative and leadership, and couldn’t agree more.

In a comment posted to the discussion board (CBA membership required) accompanying the resolution, I gave an abbreviated perspective on why such funding is important:

Although the conventional perspective on family law is that it is a branch of civil law like any other, the impact of separation on families, and the impact of justice processes on families, can be devastating to separating adults, to their children and to their friends and family members. Looking outside the family, separation and unresolved family justice issues have important consequences for the economy, housing and social services, the health care system and the education system, as shown by recent research from the Canadian Forum on Civil Justice, beyond their consequences for the traditional justice system. …

Ongoing research on family justice processes and their outcomes is desperately needed, not just to develop metrics to gauge the desperate state of access to family justice in Canada, but also to assess the impact of reform initiatives, in- and out-of-court dispute resolution processes and legislative amendments. Without the understanding provided by social science research, we have no rational basis on which to argue for systemic change, no means of measuring the benefits and harms inflicted by different dispute resolution processes and no way to look toward a better future.

The role of the research institute was not merely to fertilize the groves of academe, but to provide practical understanding of the real-life impact of family law and family justice processes, and thereby a foundation for rational change. Sadly, no other organization, private or public, exists which does the sort of ground-breaking and often influential work that was conducted by the institute.

Assuming that academics, legal professionals and policy-makers might generally agree with the need to support family law research with a national scope, Kim Covert subsequently interviewed me for an article in the CBA’s National magazine on where the necessary funding could be found.

I suggested that the federal, provincial and territorial departments and ministries of justice all have an oar in this particular pond and could be asked, or better yet required, to contribute to funding a national research program structured on the model established by the Social Sciences and Humanities Research Council. I suggested that the other departments and ministries impacted by the cost of unresolved family law disputes should also be asked to support the program, recognizing that they too have an oar in the water, as much as they’d prefer to argue that the costs and consequences of unresolved family law disputes are somehow exclusively borne by the justice system.

I further suggested that our universities, specifically the faculties of law, social work, psychology and medicine, also have a stake in family justice and its outcomes. (All appearances to the contrary, however, I am not so foolish as to believe that faculties whose constant plea is for increased funding would be able to contribute to a national research program, despite the probability that their faculty and graduate students would enjoy important benefits from such a pool of funding.)

My other suggestion, for which I assume there was insufficient space in Covert’s article, was that funding might be found from Canada’s law foundations.

Law foundations, such as the Law Foundation of Ontario and the Law Foundation of British Columbia, exist in every province and territory and get the majority of their funding from the interest accumulating on lawyers’ pooled trust accounts, which lawyers can neither collect for themselves nor distribute to their clients. (Although this is a brilliant way of making use of trust accounts, it means that law foundations are peculiarly sensitive to the economy; when interest rates drop or commercial transactions slow, the foundations’ revenues typically plummet.) With this money, the law foundations support a host of important public interest law projects, including pro bono organizations, community legal services, out-of-court dispute resolution programs and public legal education. They also fund legal research and social science research relating to justice and justice systems.

Canada’s law foundations do some extraordinarily good work that benefit a great number of low- and middle-income Canadians, including those in marginalized groups. Having said this, however, life is very difficult for non-profit research organizations that don’t have the luxury of generous bequests and annuities to pay their bills and cannot provide their funders with output metrics, like number of clients seen, number of pamphlets downloaded and number of posters printed, as an easy demonstration of value.

First, there’s a problem in that the mandate of each law foundation is limited to its own province or territory. The Manitoba Law Foundation, for example, may be willing to support research examining the situation in other provinces, but a prerequisite for funding would likely be that the research provide a direct benefit to Manitobans. (One notable example of such a funding arrangement is Julie Macfarlane’s ground-breaking 2013 study on the experiences of litigants without counsel, that was jointly funded by the law foundations of Alberta, British Columbia and Ontario and consequently studied the experiences of litigants without counsel in only Alberta, British Columbia and Ontario.) Absent such a connection, funding will usually be denied, posing serious challenges for any organization with a national scope of study.

Second, many project grants cannot be applied to administrative expenses, salaries and other essential expenses, and operating grants, which are also typically hostile to administrative expenses, generally cannot be applied to the staff time expended on project development, proposal letters and project application expenses that is necessary to secure project grants. (Project grants are often needed to fill any gaps between an organization’s operating expenses and its operating grant.) Of course, writing grant applications and fulfilling grant reporting requirements are both necessary and extremely labour intensive and suck up an enormous amount of staff time, whether the time is funded or not.

Third, the value of the project grants available has, generally speaking, dropped precipitously in the last ten years. (One notable exception is the access to justice fund available from the Ontario Law Foundation as a result of a very generous cy-près award.) Gone is the era of lucrative multi-year grants that not only paid for themselves but left money in the kitty. These days, government requests for research proposals tend to seek bids in a maximum billable value just beneath the public tender threshold, although the amount of work required to complete those project is usually vastly in excess of the billable funds available.

Finally, without stable, long-term funding, few organizations are able to effectively plan from one year to the next, sign lease agreements for office space and hire permanent employees. The Law Foundation of British Columbia comes to mind as an example of a foundation that will enter into multi-year funding commitments; the Alberta Law Foundation is an example of a foundation for which fresh applications for operating grants must be made anew every year, with no guarantee that the funding will be provided.

If a suitable pool of funding is not going to be forthcoming from either government or the academy, my suggestion to the National was that the law foundations work together to create a pool of funding for the express purpose of endowing national research organizations with continuing operating grants in the amount of each organization’s reasonable operating expenses. It seems to me that this would eliminate the need to prove a nexus between a funding application and direct benefits to a specific province or territory, while fostering a truly national approach to truly national problems. It would eliminate the need to spend administrative time securing unremunerative project grants. It would allow organizations to create long-term business plans, hire staff and indulge in the critical longitudinal research that is usually needed to measure outcomes. It would allow organizations some of the freedom necessary to pursue important research without paying obeisance to whatever parochial values might be held by a primary funder. Incidentally, it would also allow the development of a national justice research agendum, something that would have value in itself, as noted in the reports of the National Action Committee on Access to Civil and Family Justice.

All Canadian law foundations are members of the Association of Canadian Law Foundations – I am perplexed as to why they’ve never reversed the order of “Association” and “Canadian;” their acronym would be improved enormously – and the ACLF seems like an ideal forum for such an initiative.

Although I’m not entirely clear on the ACLF’s governance structure, what I had in mind was the passing of a motion requiring members to contribute a fixed percentage of their annual revenues toward a Canadian justice research fund that the ACLF would be administer. A set percentage would allow individual members to contribute in proportion to their revenues as they fluctuate from year to year, avoiding the potentially onerous burden of a fixed amount, and the total sum collected should exceed expenditures so as to establish a surplus from which to draw in straitened economic times. The justice research fund should be directed toward qualified, credible, non-profit organizations that are managed by boards of directors with significant expertise in law and the social sciences. The ACLF should review and approve of each organization’s overall research plans on an annual basis, monitor the organizations’ progress with their plans and be entitled to propose new questions for study by its grantees.

I am aware that this is not a perfect solution, that it would involve a not insignificant administrative burden and that the ACLF may not be structured so as to create and manage a justice research fund. However, if the Del Rizzo and Barkauskas resolution fails to stimulate the federal, provincial and territorial governments to provide the necessary resources, we will have to look elsewhere. The need for ongoing family justice research is too important to ignore.