Unified Family Court, Summative Evaluation

4. Relevance

Relevance was addressed through three questions in the evaluation framework:

The remainder of this section presents the key findings with regard to the above three evaluation questions.

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

Federal priorities for law in Canada are set by the Department of Justice Canada. The strategic outcome presented in the 2006-2007 Report on Plans and Priorities for the Department of Justice was to provide Canadians with a fair, relevant and accessible justice system that reflects Canadian values. Two priorities identified to achieve the strategic objectives in the report were:

A key objective of the UFC model is to improve access to justice through a specialized bench and ancillary services available at UFC locations. In addition, the combined jurisdiction of the two courts eliminates the need for two court registries to deal with family law matters, thereby, decreasing duplication in infrastructure and administration. Finally, the intake component identified in the UFC model could serve to streamline processes and improve case management for parties accessing the family justice system, which is aligned with the first objective of improving efficiencies in the justice system. As such, the UFC model is aligned with federal goals and objectives as stated in documentation.

As described in Section 2 of this report, responsibility for family law and the family justice system is shared between the federal and provincial/territorial governments. While the federal government appoints and pays the judges of the provincial superior courts, including UFCs, it is the responsibility of the provinces and territories to determine the particular structure of these courts. 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 reported that, conceptually, the goals and objectives of the UFC model align well with federal and provincial/territorial priorities for family justice. However, several said that in practice, the UFC concept may not be fully implemented. Therefore, operationally, the UFC may not fully align with federal and provincial/territorial priorities.

The difference between the UFC model as originally conceived and the UFCs in operation was felt to be attributable, in part, to differences in the accessibility of FJS across sites and the availability of a specialized bench. The majority of judges interviewed stressed the importance of having sufficient resources to adequately support the UFC concept, particularly in terms of judicial resources and resources for FJS. This same issue was stressed in reviews completed by British Columbia and Alberta in the decision not to adopt the UFC model in those provinces. However, recent federal initiatives to expand UFCs have not gone ahead.23

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

As outlined in the Mamo et al. (2007) report, the increased 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.

Available data and reports point to a number of characteristics that indicate a social shift away from long-term marriages and traditional nuclear families to more fluid and complex relationships and families. As conjugal histories become more complex, blended families are becoming more common.24 In addition to the changes in family structure, the cultural mosaic of Canada creates new or more complex family issues facing the family justice system. The total number of immigrants to Canada has increased by more than 150% over the past 20 years. The 2006 Census reveals that immigration currently is the key driver of population growth in Canada.25 Immigration is particularly high in certain parts of the country, such as Ontario, Quebec and British Columbia, suggesting that these provinces (or cities therein) are experiencing significant population growth.

As noted by several members of the judiciary and court registry staff interviewed for the evaluation, family law disputes increasingly involve multinational families as well as litigants with language barriers and different cultural backgrounds. Several administrative court staff reported that they are now serving a more culturally diverse population, which entails specific challenges for family court cases and proceedings ranging from language barriers to the need for international cooperation with respect to child custody, access and support issues. Ontario Superior Court judges in both UFC and non-UFC courts noted that because of the socio-demographic makeup of certain regions in Ontario, such as Toronto, cultural and language issues are a constant consideration.

The unification of jurisdiction over family law in 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. Access to judges specialized in family law matters was intended to help address increasing case complexity and less adversarial resolution of cases. FJS were to provide a range of services to help people address and resolve issues through means outside the court. Theses services also provide support mechanisms that can be developed to address specific community needs.

Trends in family justice issues reported by members of the judiciary varied depending on various factors and characteristics of the regions. For example, child support (re)calculation was noted as being high in regions experiencing economic downturn. In areas with high immigrant populations, families were seen to struggle to understand family law and the family justice system in Canada and to access services due to cultural and language barriers. Therefore, the needs of separating/divorcing families vary depending on the characteristics of and circumstances in the community. All UFC judges were positive about expanding UFCs to other populations and communities and most members of the judiciary who were interviewed considered a specialized bench and access to a range of dispute resolution and FJS to be key factors in helping families resolve their issues.

Services available at Unified Family Court locations help to assuage the additional burden that self-representation adds to the family justice system.

In addition to the increasing complexity of family law issues and the constantly changing needs of separating or divorcing families, there is an increasing trend for self-representation in family law cases. There is a substantial amount of systematically gathered evidence based on the experience of justice professionals that there has been an increasing trend in the number of litigants attempting to negotiate criminal and non-criminal justice systems without legal representation. However, it is important to note that there are very few reliable statistics concerning Self-Represented Litigants (SRLs).26 Nonetheless, research literature and qualitative information gathered in the current evaluation suggest that family courts in Canada are increasingly dealing with SRLs and the challenges associated with assisting these individuals through the court process. As summarized previously in Table 3-3 (see Section 3), in almost 75% of the total sample, at least one party did not have legal representation. These numbers indicate that self-representation is an issue in the majority of family law cases, requiring judges and court clerks to spend considerable time explaining court rules, processes, and procedures before being able to devote time to issue resolution.

Many members of the judiciary and court staff 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 services that are supported through the UFC model can be an important resource for self-represented parties. For example, a legal advice lawyer can provide information to parties about the procedures and rules that have to be followed. An intake coordinator can help with the completion of forms and inform parties of alternative options for resolving issues or support services available. In fact, some jurisdictions have developed services and programs specifically designed for SRLs (for example the SRL Project in Nova Scotia).

There are some who feel that the role of the federal government in supporting the Unified Family Court model could be expanded.

Aside from appointing and providing the salaries for the UFC judges, the federal government has had little input regarding the implementation of the UFC, as this is the responsibility of the provinces/territories. The variability in implementation of the model across UFC sites reflects provincial/territorial preferences and needs. These additional resources are provided through federal grants and contributions programs, as well as through provincial/territorial funding initiatives. As found in the current evaluation, the variation in the implementation of the other elements of the UFC affects the degree to which UFC objectives are attained.

Some members of the judiciary felt that the federal government could have an increased role in monitoring the UFCs to encourage adherence to the conceptual model as well as to monitor the adequacy of resources in supporting the model.