Access to justice and modernization of the family law rules: A holistic narrative

Law360 Canada (November 13, 2024, 3:28 PM EST) --

Joanna Radbord

Rachel Birnbaum

Lack of access to family justice can have profound and damaging effects. Children may be denied parenting time and contact with beloved caregivers; they may be exposed to, and experience, the lasting physical, psychological and financial harms of family violence; and they may grow up in poverty.

While the family law rules offer a pathway to an adversarial court process to seek resolution, that process is often inaccessible and sometimes has unintended adverse impacts that cause individual and systemic problems.

The authors recently completed a unique research study interviewing 33 family justice interviewees from across Canada, alongside a review of the literature concerning the family law rules. Seven core themes emerged from the research that reflect broad value-based tensions. The seven core themes were: (1) the prevalence and significant challenges for self-represented litigants; (2) the inaccessibility of the family justice system, including the family law rules of court and the forms; (3) the presence of systemic barriers and inequalities in seeking family justice; (4) the need for better technology; (5) the requirement to clarify existing services and programs to assist with family dispute resolution; (6) the benefits of family law specialist expertise; and (7) the importance of the conferencing process.

We heard from our interviewees diverse, and often conflicting, perspectives on how the family law rules could be modernized to meet the needs of litigants. What was clear: the majority of family court users are self-represented.

Statistics Canada gives the figure that 58 per cent are self-represented, but we know that the figure is much higher in some jurisdictions — perhaps closer to 80 per cent of litigants. We heard from one lawyer interviewee in our study, “I’ve never seen a self-rep that successfully started an action. So, it may have happened, but I haven’t seen it.”

In contrast, another interviewee argued that self-representation could be an empowering experience and said that it may be chosen quite intentionally and productively. That interviewee claimed that family law is not necessarily “rocket science.” Most interviewees, however, felt the rules of court were “impenetrable” despite longstanding efforts to eliminate “legalese.” One proposed answer: self-represented litigants must be paid to serve on the committees responsible for amending the family law rules.

Family court forms are not written in plain language, either. Many interviewees advocated for forms that are “heavily directive” alongside more in-person and virtual support. They suggested clearer and more accessible online information on uncluttered web pages. We were also told that self-represented litigants would benefit from increasingly detailed explanations of the meaning of legal terms such as “cohabitation” and “separation.”

Interviewees said it would be best to have people available — navigators who would assist self-represented litigants to go through forms whether online or paper-based. We heard from interviewees as well about the value of “family law hub” resource centres. Ideally, navigators would be grounded in the local community and provide services in multiple languages that would also be accessible to persons with disabilities. We heard that services should be available outside regular courthouse hours — many people with jobs will need services in the evenings and on weekends.

There was another point of contention and possible consensus about access to family justice. Disclosure was named “the biggest problem” in relation to child and spousal support as well as property. The proposed workarounds suggested were divergent. In the West, we were told there was a serious problem with timeliness in accessing resolution because of an insistence on exchanging disclosure prior to engaging judicial attention. Costs were seen as a better approach to compel compliance with disclosure obligations.

In contrast, it was suggested that we may want to remove child support disclosure and income determination from the court process altogether and move to a tribunal model, although this engages difficult constitutional issues. Many cited the benefits of an extension of child support calculation and recalculation services to include special or extraordinary expenses, as done in Manitoba.

Some interviewees argued that conferencing efforts were an excellent means to ensure cost-effective prompt resolution, particularly when litigants have the benefit of speaking to a family law specialist judge. Others complained that ongoing conferencing delays resolution and often results in unfair settlements by exhausting claimants financially and emotionally. We know family law cases generally take a backseat to criminal cases, resulting in widespread delay. Most agreed that more judges, specialist judges particularly, are necessary. Others advocate that we should proceed to non-judicial processes like parenting co-ordination.

Who is left out of the conversation about fairness and timeliness of family justice processes? Children. One interviewee expert in family violence said: “The court process needs to move quicker, especially when there are children involved … The mental health damage that happens to children when they are waiting one to three years to have a parenting plan put in place when there are issues of family violence is ridiculous because those [families] are not the ones where the parents are going to agree and be able to come up with a parenting plan.”

While waiting, there may be ongoing litigation abuse. Systemic delays mean ongoing harms to vulnerable claimants and children. There needs to be an investment in a bigger complement of judges to ensure timelier family law hearings, alongside investment in mental health support for families.  

Existing family law rules and court processes were not written with a view to the psycho-emotional impacts of family law disputes nor to intersectional power imbalances. They largely fail to respond to the reality that we now have a majority of litigants attending court self-represented. Existing law is able to provide court orders, formally at least, but the lived experience of family breakdown often presents social, emotional and economic barriers to the courts and threatens to exacerbate existing inequalities.

We must consider more than legal steps and evaluate the social and human impacts on those who are seeking access to family law justice. We need to move forward toward a more holistic family justice system and invite further dialogue that honours the needs of children and families and efforts to further access to justice.

Joanna Radbord is a partner at McCarthy Hansen & Company, LLP. Rachel Birnbaum is the co-director of the Research Institute with Children at King’s University College, Western. They thank the Department of Justice and Public Safety, Prince Edward Island and the Social Sciences and Humanities Research Council for funding this important initiative.

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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