Unified Family Court, Summative Evaluation

EXECUTIVE SUMMARY

1. Introduction

The concept of the unified family court was first introduced in Canada in 1974 by the Law Reform Commission of Canada. It was designed to enable families to resolve all outstanding legal issues in a single forum, providing "one-stop shopping" for family law services by unifying the jurisdiction of the federal government and the provinces into a single court. Key characteristics of the unified model include employing simplified procedures in a user-friendly environment, having specialist judges, and providing a full range of professional and community support services. It was felt that the combination of these factors could offer a multitude of benefits, such as: speeding up the resolution of family matters, reducing the potential for further conflict, increasing the ability of family members to access the court and obtain other services most appropriate to their needs, and offering better long-term outcomes for children and their families.

Unified Family Courts (UFCs) were piloted in four jurisdictions: Hamilton, Ontario (1977), Saskatoon, Saskatchewan (1978), Fredericton, New Brunswick (1979), and St. John's, Newfoundland (1979). Since then, UFCs have been maintained or expanded within the original four provinces and have been introduced in Prince Edward Island, Manitoba and Nova Scotia. Although the provincial/territorial governments have responsibility for the constitution and administration of the UFCs, UFC judges are appointed and paid by the federal government.

To meet Treasury Board Secretariat requirements, a summative evaluation of the UFC was undertaken. The UFC evaluation relied on multiple lines of evidence, both quantitative and qualitative, including an extensive court file review, key informant interviews as well as a review and analysis of existing data sources, documentation and literature. A quasi-experimental design was used to determine the extent to which the UFC model achieves its intended objectives, using a comparison group of non-unified courts that aligned with a more traditional model (i.e., limited supports, no specialized bench).

2. Key Findings - Relevance

2.1. The goals and objectives of the Unified Family Court model are aligned with federal priorities.

Responsibility for family law and the family justice system is shared between the federal and provincial/territorial governments. Implementation of the UFC model has thus been a collaborative exercise reflective of the goals and objectives of both levels of government.

Members of the judiciary representing all levels of court felt that, conceptually, the goals and objectives of the UFC model align well with federal and provincial/territorial priorities for family justice. However, several felt that in practice, the UFC concept may not be fully implemented at individual sites. Therefore, operationally, the UFC may not fully align with federal and provincial/territorial priorities.

2.2. The complex and changing needs of families experiencing separation or divorce continue to be served by the Unified Family Court model.

The increasing complexity of family law matters in the 1970s was a key impetus behind the development of the UFC conceptual model. Recent publications by Statistics Canada and research on family structure suggest that Canadian families have undergone significant changes over the past several decades, adding to the complexity of issues. These findings are echoed by the justice professionals and other key informants interviewed for the evaluation.

The unification of jurisdiction over family law into a single court was meant to make the system easier for families to navigate, a characteristic that aligns well with serving a population that faces language and cultural barriers. A specialized bench can also help to address issues that are related to cultural differences, as well as the increasing complexity of family structure and conjugal histories. Family justice services (FJS) are designed to help people address and resolve issues through means outside the court. These services also provide support mechanisms to address specific community needs.

Many members of the judiciary and court staff who were interviewed commented on the additional time required to educate or guide self-represented parties through the various procedures required to initiate and continue a case. Well-developed Family Law Information Centres (FLIC) services are supported through the UFC model and can be an important resource for parties that are self-represented. Some jurisdictions have developed services and programs specifically designed for SRL (for example, the SRL Project in Nova Scotia).

3. Key Findings - Success

3.1. Overall, UFCs enable better access to a specialized bench of judges and on-site dispute resolution and family justice services than non-Unified Family Court sites.

A specialized bench is much more likely to be in place at UFC locations than non-UFC locations. However, access to a specialized bench at some UFC locations may be decreasing as demand for service has increased while the number of UFC judges has remained constant.

Mediation or conciliation services are more likely to be available at UFCs than at non-UFC locations. According to the inventory information, at least 90% of UFCs have mediation available and 85% have mediation services on-site, at the court registry. In contrast, 41% of non-UFC locations offer some type of mediation services.

Similarly, the type and range of FJS available are greater at UFCs than at non-UFCs. FLICs are available on-site at all of the 39 UFCs and some UFCs maintain a FLIC that is staffed with a trained professional who provides assistance to parties and/or refers them to appropriate services. Staffed FLICs are only available at 16% of non-UFC locations, as compared to 87.2% of UFCs. Parenting information materials are also available at all family court locations across Canada. Participatory sessions are offered at almost all (95%) UFCs. In contrast, parenting information sessions are available at 16% of non-UFC locations.

3.2. A specialized bench was reported to be of primary importance to the overall performance of the UFCs in meeting objectives.

According to the UFC Results-based Management and Accountability Framework (RMAF), having judges who are specialized and expert in family law was seen to be increasingly critical, as family law matters have become more complex. The majority of judges interviewed for the evaluation reported the specialized bench to be of primary importance not only to UFCs but to family cases regardless of the type of court. Given the increased complexity of cases and the increasing numbers of Self-Represented Litigants (SRLs), specialized judges are well equipped to address the issues and arrive at a successful resolution. Several informants noted that complex family law matters often require knowledge in a variety of fields (e.g., psychology, social work, accounting, etc.) as well as the use of innovative approaches to resolve issues, particularly where children are often involved and parties are highly emotional. Overall, most judges interviewed for the evaluation noted that access to a specialized bench is a crucial element that enables the court to provide timely and less adversarial resolution to family cases, thereby contributing to UFC objectives. However, simply providing a specialized bench, out-of-court dispute resolution and FJS does not guarantee their accessibility or utilization.

Utilization of FJS was found to be affected by the presence or absence of a strong referral mechanism, such as intake personnel. Individual preference of justice system personnel can also affect utilization of these services. Some key informants interviewed also noted that sufficient resources, judicial and support (e.g., FJS), are necessary for the UFC model to be effective.

3.3. Although some of the results are inconclusive due to design issues, there is some evidence to suggest that the Unified Family Court model helps to resolve issues more efficiently.

Trials are considered to be an adversarial and costly resolution option and most family cases appear to avoid going to trial in all courts. Therefore, resolution of issues by consent is an indication of less adversarial resolution of issues. The average proportion of consent orders per case at all UFC sites taken together is 29.7%, which is almost identical to the average proportion of consent orders per case at non-UFC sites at 29.3%. However, when the UFC sites were examined separately, there were dramatic differences in the proportion of matters resolved through consent/agreement.

Results for the intensity of court usage indicate that UFCs may be more efficient than traditional courts in terms of issue resolution. Intensity of court usage can be considered in terms of the number of court-related activities from the first appearance to the last activity associated with an application and the number of repeat applications within cases. The total number of court activities per application/new filing is lower in the UFCs than in the traditional non-UFC comparison locations. Repeat applications provide an indication of the intensity of court usage, whereby parties need to return to court with unresolved or new issues after first opening their case file. Results reveal little difference in the number of times parties return to court with a new or re-emerging set of issues across the different courts.