Proposals to Improve the Family Justice System In Ontario. July 31. 2019
The Family Dispute Resolution Institute of Ontario (FDRIO) serves to establish high quality family dispute resolution processes, and to educate the public about them. The organization does not advocate for any process over another, and has therefore great credibility in an exercise such as this. FDRIO serves no special interest; rather it seeks to ensure that all families in Ontario benefit from the most appropriate, effective, accessible and affordable dispute resolution option for that family.
Over the past 20 years there have been numerous reports and ideas about how to improve the family justice system in Ontario. Family law is an area of shared jurisdiction between the federal and provincial government, and that shared jurisdiction has made meaningful progress difficult. But all provinces share this challenge, and yet Ontario lags behind other Canadian jurisdictions on a number of fronts. At least 50% of Ontarians who proceed to family court do so without lawyers, and in some court locations upwards of 80% of litigants are unrepresented.
In testament to the high level of interest in family law reform, one can review several major reports and commentary about these issues from the last 10 years:
The family justice system is where the majority of adults intersect with the court system. Few are arrested or are victims of crime, even fewer use small claims court. But many adults separate and about 30 thousand couples divorce every year in Ontario. This does not include cohabiting couples which is close to another 30 thousand couples. And when these families go through the court system without representation, they often do not have positive experiences, with some likening it to doing surgery on oneself. Even with representation, court resolution is costly, divisive and potentially damaging to long term relationships between parents and children.
The Attorney General is seeking ways to:
- Direct family matters out of a combative court process where possible
- Reduce costs to parties and taxpayers and
- Streamline processes to shorten time to resolution
What changes can government make to improve the family justice system? Options include legislative, procedural and policy approaches.
The goals of this review are laudable. Change is inevitable and necessary. It also must take into account what we know from decades of research and experience about the context of family breakdown; otherwise change could come at the expense of the most vulnerable.
We advise caution, for instance, with the characterization of the court system as “combative”. It is not court that is combative; it is the very nature of human beings experiencing separation and divorce that is combative. It is the legal culture that pervades family law that is combative. Courts are not combative; the due process requirements of the courts along with the many supports for the vulnerable are critical to our Canadian legal value system. The courts build safeguards into their processes to ensure that justice is done—that bullies and perpetrators of domestic violence and those seeking revenge at all costs cannot achieve unfair outcomes that put the future and safety of children at risk.
We emphasize this because the starting point for all family justice reform should be this: what is the safest process that is likely to lead to a fair result for each family? Where the power imbalances or safety risks are great, the dispute resolution process may need to have the coercive power of the courts in order to protect the vulnerable.
But for a great many others, resolution in other ways is more likely to meet the objectives of the Attorney General.
FDRIO’s work is guided by its Standards of Practice. The first eight standards should inform all family justice reform:
- Respect party self-determination
- Establish and maintain competence
- Do no harm
- Respect the rights of children
- Maintain confidentiality and inform parties of exceptions
- Ensure freedom from conflicts of interest
- Establish and maintain quality of the process
- Remain impartial and neutral
Alongside our Standards of Practice are our Screening Guidelines, which are designed to identify cases where there is a power imbalance, so that steps can be taken to plan a safe dispute resolution process. FDRIO has established the most comprehensive set of guidelines to date for those working with separating families as dispute resolution service providers. Understanding the nature of family violence, coercive control, and other forms of power imbalance and having expertise in identifying, assessing and managing it is crucial to successful family dispute resolution.
This is the most important of all the standards guiding our work: Do No Harm.