Unified Family Court, Summative Evaluation

5. Success

The following evaluation questions are addressed in this section of the report:

5.1. Access to Dispute Resolution Mechanisms and FJS

One of the objectives of the UFC is to provide non-adversarial resolution of family disputes and to assist in achieving earlier resolution of issues. To support this commitment, the UFC model includes dispute resolution mechanisms, such as case conferencing and mediation. In addition to dispute resolution options, the UFC model includes a minimum of FJS and supports, such as information, intake, conciliation, and education programs.

Although court-related dispute resolution options are similar for all courts, UFCs are more likely to offer out-of-court dispute resolution options than are most non-unified courts.

The inventory of court and FJS revealed that some types of dispute resolution mechanisms are used in the non-UFC groups. For example, judicial case conferencing is a common practice in many provincial and superior courts, and is often mandatory prior to trial. Ontario Rule 17 of the Family Law Rules requires that a case conference be held with a judge in cases where an answer is filed27 in order to explore the chances of settling the case, identify the issues that are in dispute/not in dispute, explore ways to resolve issues in dispute, organize/hold a settlement conference (if appropriate), and/or deal with items related to hearings/trials. In Ontario, case settlement conferences are practiced by both provincial and superior courts.

The Family Court Act in Nova Scotia allows provincial court judges to conduct pre-hearing conferences during which parties may narrow or come to agreement about the issues in dispute. In the UFC, the Superior Court - Family Division, settlement conferences are conducted with a judge at the discretion of the court or at the request of the parties. In Manitoba, case conferences with the judges are part of the courts' judicial case management program. All family law proceedings are subject to case management and are designed to explore options for case resolution either to eliminate the need for a trial or to prepare the parties for further steps by narrowing the issues.28

In British Columbia, Provincial Court (Family) Rules set forth that in family law matters where custody, access or guardianship are contested, a judge may order a family case conference to explore options of resolving or narrowing down issues in the case conference or via referral to mediation or other service. The Supreme Court rules of Court in British Columbia prescribe that a judicial case conference must be held in most cases before a contested application can be made in a family law matter. Family case conferences are conducted in provincial court and judicial case conferences (which apply to family and other civil cases) are conducted in the superior court. Judicial dispute resolution offered in Alberta serves a similar purpose, where parties and their lawyers meet with a judge to determine whether a case can be settled prior to taking any additional steps in court.

In contrast to case conferencing, mediation or conciliation services are more likely to be available at UFCs than all other types of court locations.29 Forty-one percent of non-UFC locations offer some type of mediation services. In contrast, at least 90% of UFCs have mediation available and 85% have mediation services on-site at the court registry.30 In Ontario, all 17 of the UFC locations have both on-site and off-site mediation services available.

At the Halifax UFC, conciliation services (which do not provide formal mediation) are available on-site to all cases prior to entering the court system after an intake review is conducted. Mediation is also available in Halifax through court referral or it can be accessed privately. Mediation services in Saskatoon are provided at the same location as the court registry and can be used at the discretion of the parties or upon referral by a judge.

UFC judges reported that the UFC model facilitates access to out-of-court dispute resolution mechanisms. All judges reported that families served by a UFC had better access to dispute resolution than those served in many jurisdictions without a UFC.

The type and range of FJS available is greater at UFCs than at non-UFCs, overall.

The UFC model specifies that a minimum set of FJS be available. In contrast, the range of services offered in other court locations varies substantially by province and by site. Some locations offer very few, if any, in-person services, providing information materials instead. However, it is important to note that there is also considerable variation in the number and type of FJS at UFC locations.

Family law information is available on-site at all of the 39 UFCs, some of which maintain a FLIC that is staffed with a trained professional. This individual provides assistance to parties and/or refers them to appropriate services, such the IRC in Ontario. However, the hours that FLIC staff is available varies across locations. For example, an IRC is available every day during court registry hours in the Oshawa UFC, while FLIC staff is only available on certain days and times at other UFC locations. In Saskatoon, the FLIC is part of a pilot project that incorporates support variation services. The pilot project operates in Regina, with a smaller satellite office in Saskatoon located in the same building as the family court during court registry hours. During the reference period for the case file review, Saskatoon only offered information materials on-site.

Outside of the UFC locations, family law information services range from online and printed literature or other materials regarding family law matters to full-service FLICS such as those described above (for example, in Calgary and Edmonton). Staffed FLICs are only available at 16% of non-UFC locations, as compared to 87.2% of UFCs. Therefore, access to FLICs and full-service FLICs is greater at UFC sites compared to non-UFC sites. As noted by several members of the judiciary, this type of assistance helps to alleviate pressure on the court system as judges spend less time educating self-represented parties about court procedures and other requirements, and spend more time on helping families to resolve their family law issues. In Ontario, it is estimated that the FLICs serve approximately 400,000 clients, which is much higher return for information services more than once.

Parenting information materials are also available at all family court locations across Canada. However, there is a clear difference between UFCs and non-UFCs with respect to participatory parenting information sessions (i.e., where the parties attend the sessions in person). Participatory sessions are offered at almost all (95%) UFC sites. However, where these sessions are not offered, the two sites are connected to other larger UFCs in the same region that offer them. There are some differences as to whether participation in these sessions is mandatory. Participatory parenting information sessions are available at 16% of non-UFC locations, but based on the information provided by court registry employees at non-UFC locations, these may be offered through the community. In locations that do not provide participatory sessions, parenting information/education materials are provided.

Other services have been developed and are offered at limited locations across the country. Supervised access programs are offered at locations in Manitoba, Saskatchewan, Ontario, Nova Scotia, Prince Edward Island, and Newfoundland and Labrador. In Ontario, this service is available at all court locations, while in the other provinces programs are usually associated with UFC locations.31 Child support (re)calculation services are relatively new and available in only a few locations (e.g., in Saskatoon, as a pilot project, and in Kelowna). The provision of legal advice lawyers as part of the FLIC also varies by province and by location.32 While both services are also available in provinces that have not adopted the UFC model, these services are more often found at UFC locations.

Simply having a range of dispute resolution mechanisms and FJS available at the UFCs does not guarantee access or utilization.

As pointed out by a few of the key informants, having non-court dispute resolution options such as mediation in place does not guarantee accessibility. For example, waiting lists resulting from insufficient resources can interfere with access. In one location, FJS staff indicated that, due to staff shortages, the average wait time for an intake interview can be six to eight weeks. Another barrier to access can be the quality of service. A few of the judges noted that there must be a certain level of confidence in the service providers; otherwise referrals will be low and parties may not be receiving appropriate assistance. These services cannot be effective if they are not adequate in terms of quality and resources.

In addition, members of the judiciary interviewed at the UFC locations indicated that, generally, they assume that when the parties reach the court, they have exhausted other alternatives to dispute resolution and accessed the appropriate FJS. However, since this information is not provided in the case files at many court registries, the extent to which this assumption is accurate is unknown.

A key concern of the judiciary is the general lack of judicial and other resources available to adequately support a fully implemented UFC model and meet the needs of growing communities in existing UFC locations. Judges from all three courts (i.e., unified, superior and provincial) stressed the importance of having sufficient resources to adequately support family needs, particularly in terms of judicial resources and FJS. Several members of the judiciary noted that, due to rapid population growth in some communities, there has been a greater demand for family court services and that a growing proportion of families may not be accessing the family justice system and/or that the time to resolution is longer than necessary, due to capacity issues associated with the larger case volumes. Separate reports produced by the Ontario, Alberta and British Columbia governments also point to the need for adequate resources to properly support the UFC concept.33 In British Columbia, the need for adequate resources to properly implement and support the UFC model was a key consideration in the decision of whether to implement the model.

5.2. Access to a Specialized Bench

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

Appointing judges based on their experience in, commitment to and knowledge of family law is one of the key elements in the design of the UFC and, therefore, a direct linkage to the expected outcomes. The assumption is that case resolution will be less adversarial, more tailored to the needs of children, and generally more efficient as compared to a non-specialized bench. The specialized bench can provide benefit to the ongoing development of family law due to the extensive knowledge and experience of the judiciary in dealing with family law matters. Another advantage noted by members of the judiciary was that a specialized bench provides ongoing opportunities for judges who are experts in family law issues to consult among themselves and with other specialized judges and family justice professionals involved in family law. According to the UFC RMAF, having judges who are specialized and experts in family law was seen to be increasingly critical, given the challenging nature of family law matters.

In most non-unified courts, particularly at the superior level, members of the judiciary are generalists and hear all types of cases, including divorce and matrimonial property cases; any ancillary issues are also heard. Provincial courts are more likely to have judges who spend a substantial amount of time dealing with family law cases, although in these locations there is not necessarily a designated family court, per se. On the other hand, in locations such as the provincial courts at the quasi-UFC sites identified for the current evaluation, a specialized bench has been developed as part of the provincial family court.

The majority of judges reported the specialized bench to be of primary importance to family cases regardless of the type of court. It was stressed that given the increased complexity of cases and the increasing numbers of SRLs, specialized judges are better equipped to address the issues and arrive at a successful resolution. Several informants noted that family law matters routinely require knowledge in a range of fields beyond the law (e.g., psychology, social work, accounting, etc.) and the use of innovative approaches to resolve issues, particularly when children are often involved and parties are highly emotional. Overall, most judges 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.

A few judges favored a more generalist approach whereby judges hear the full range of cases that go through the court to ensure that a minimum level of expertise is developed in all areas of law. However, it was not clear whether they felt this would lead to better resolution of family matters or if this was simply a preference. Finally, judges did not note any issues with respect to burn-out.

A specialized bench is more common at UFCs compared to non-UFCs.

All UFC locations have a corps of judiciary who has significant experience in the area of family law. UFC judges interviewed at the four locations included in the evaluation reported that 80 to 100% of the cases they hear are family law cases. In fact, all but one judge interviewed heard 95% or more family cases. In some locations, specialist judges are supported by superior court judges who are rotated into the UFC on a scheduled and/or as-needed basis (e.g., to conduct a trial). In addition, many UFC judges go on circuit to smaller communities where they hear all types of cases.

At courts where there is not a specialized bench, many judges spend some time on family law with some reporting that they spend more than 50% of their time on family cases. In Toronto superior, for example, of the 90 judges, 20 have exposure to family law cases although to varying degrees. Of these 20 judges, it is estimated that 5 spend less than 25% of time on family law cases, 5 spend 25-30% of time and 5 spend more than 50% of time. No information was available on the work of the remaining judges.

Comparative information with respect to how much time is spent on family law was difficult to collect for non-UFC sites. Most of those interviewed could not provide information as to the percentage of judicial time spent on family cases or the percentage of the caseload that pertained to family law. As such, assessing the extent to which a judge "specializes" in family law is not possible for most traditional court sites. However, based on the information available through the interviews, it can be assumed that access to a specialized bench is greater at UFC sites than at non-UFC sites. It should be noted, however, that at courts serving smaller communities, the number of judicial resources is limited; therefore, some judges hear close to 100% of the family cases in that community, as well as other types of cases.

Access to a specialized bench at some Unified Family Court locations may be declining as the population increases while the number of Unified Family Court judges remains the same.

As discussed previously, several of the UFC sites included in the current evaluation are facing challenges with respect to increasing caseload of the specialized judges at the site. Significant population growth along with increasingly complicated family arrangements have resulted in increased demand for family court involvement in some regions in Canada. The number of UFC judges has remained unchanged since the most recent expansion occurred in Ontario in 1999 (expansion occurred in other provinces prior to that year). In interviews, judges and other court staff at some locations stressed that increased caseload has undermined the positive effects of having access to a specialized bench. For some sites it was noted that, due to the increased caseload, it can take several months before a first case conference with a judge can be scheduled.

5.3. Coordination

If implemented as intended, the Unified Family Court model can facilitate coordination between the courts and FJS.

As noted throughout this report, UFC locations differ according to the extent to which FJS and dispute resolution mechanisms are offered and coordinated with each other and with the court. Some UFCs have implemented an explicit intake or referral mechanism as outlined in the original UFC model, while others do not have formal intake or other components that provide a coordination function between the court and out-of-court services. At one of the UFC sites, a case file is opened in the court registry at the time intake services are accessed, and all case-related activities are noted in the file. The file is maintained in the court registry regardless of whether or not the parties ever file an application or petition, or go to court. This was the only site in the evaluation where utilization of out-of-court services could be reliably tracked through the court files.

The coordination function in this one location (Site C) was clearly documented and results suggest that this location was more efficient and/or effective than the traditional court locations in resolving family issues. As summarized in Table 5-1, there are significantly34 fewer court activities at this UFC than in traditional non-UFC courts and quasi-UFCs.

Table 5-1: Number of Court Activities per Application/Filing
Location/Group Statistic Total Court Activities
Quasi-UFC Sample Mean 1.5248
Median 2.0000
Traditional Non-UFC Comparison Sample Mean 2.7741
Median 2.0000
UFC Site Mean .9101
Median .0000

Source: Case file review; basket divorce cases excluded

The need for fewer court activities in this UFC Site to resolve issues could be a reflection of the high use of intake and conciliation services in that location. These services can help decrease the amount of court activity by helping parties to narrow or focus issues and to meet procedural requirements prior to going to court, thus saving the judge time in explaining court procedures or dealing with issues that can be more easily resolved.

There is other evidence to suggest that a staffed FLIC with a referral or coordination function can enhance utilization of non-court dispute resolution and/or FJS. For example, in the study conducted by Mamo et al. (2007), Oshawa had the highest rate of referrals to mediation from the Information Referral Coordinator (IRC). Of the four locations included in their study, Oshawa was the only one to have an IRC available every day during court registry hours. Similarly, the observations and anecdotal evidence collected during the current evaluation suggest that FLIC staff serve as intake coordinators, although a recommendation was made in favor of a properly funded, full-time information and referral coordinator with clearly defined roles and responsibilities.

Not only must coordination mechanisms be present, the referral mechanisms must also be in operation in order for families to utilize FJS. Mamo et al. (2007) found that the rate of referral can vary by location in terms of who is making the referrals. For example, the researchers found that in Oshawa, approximately half of referrals were made by the IRC, whereas in Barrie, 45% were made by lawyers. In Oshawa, judges referred parties to mediation in 18% of cases while in the other three locations, it was not apparent that judges had referred any parties. Clearly, circumstances in each location created a distinct referral mechanism or relationship. Therefore, factors other than accessibility and coordination influence utilization of services. Reasons for low referrals by different groups of law professionals at different locations cannot be determined conclusively from this study. However, results of interviews with members of the judiciary across all sites covered in the current evaluation suggest that one reason may be a lack of confidence in or the (perceived) quality of the services/service providers. Other factors noted in interviews suggest that the relationship between the referring party and the service provider can influence referral patterns.

In the absence of intake or family law information services staff, court registry employees often serve as the point of entry into the family justice system and are key to coordination between the court and FJS. The current evaluation found substantial differences among the court sites with respect to coordination by court registry staff. For example, at one of the UFC locations, registry employees have adopted an informal model of intake and referral, which they feel has been possible because they only deal with family law issues and have had the opportunity to develop some expertise in dealing with them. At this location, court registry staff also have ready access to the UFC judges should they require advice. However, while these referrals may have had some impact on the overall performance of the UFC at that site compared to those with no referral services, the informal nature of the referral mechanism made it impossible to track and establish to what extent referrals may have contributed to case outcomes at the site.

It is important to acknowledge that FJS are also well coordinated at some locations with non-unified courts although this is generally the exception and not the rule.

5.4. Less Adversarial Resolution of Issues

Another evaluation issue outlined in the RMAF is the UFCs' approach to less adversarial resolution of family law matters. Proxy measures for the adversarial nature of issue or case resolution in this evaluation include whether or not cases went to trial and the extent to which issues within a case were resolved by consent.

Overall, the number of cases that went to trial is very small across all locations included in the case file review (2.4%, 47 applications); it is too small to yield meaningful results for a breakdown by court type.

Aggregate results comparing UFCs and traditional courts are inconclusive with respect to capacity and ability to arrive at less adversarial resolution of cases.

When the results for all UFC sites are aggregated, the average proportion of consent orders per case at all UFCs is 29.7%, which is almost identical to the average proportion of consent orders per case at traditional non-UFC sites at 29.3%.35 However, the individual sites demonstrate dramatic differences in the number of consents/agreements, with the proportion of consent orders per case ranging from an average of 8% at one UFC site to 69% at another. Some UFC sites (i.e., those that have implemented the model as originally intended) achieve a higher proportion of consent orders/agreements than do traditional court sites, while those UFCs that are less similar to the model achieve a similar or lower proportion of consent orders.

Divorce cases by court model and consent orders

[ Description ]

Note: Quasi- and traditional provincial courts do not have jurisdiction over divorce.

5.5. Timely Resolution of Issues

Timely resolution was explored in terms of time from first court activity to last activity noted for a specific filing (as mentioned before, the family case file remains open indefinitely as people can return and file new applications as issues arise). Time spent in court with a judge typically was not tracked in the court files and therefore could not be used as a measure. Perceived timeliness could only be assessed through key informant interviews as a survey of court clients was not part of the evaluation methodology.

Results suggest that cases that go through a Unified Family Court take longer to resolve than do cases that go through a non-Unified Family Court.

Overall, when compared to the traditional model, UFCs appear to need more time to resolve cases. As evident in Table 5-2, the amount of time between the first court activity to the last file activity is substantially higher, on average in UFCs (179 days) than in traditional non-UFC locations (130.5 days) and from the overall average (154 days).36

Table 5-2: Time (in days) from First Court Activity to Last Recorded Activity (per Filing)
Court Group Mean Median Minimum Maximum
UFC Sample 151.49 76.00 0 1,277
Traditional Non-UFC Comparison Sample 116.82 56.00 0 1,261
Overall Average (including Quasi-UFCs) 153.79 77.00 0 1,277

Source: Case File Review

The difference could be a reflection of various intervening factors including caseload, process issues (with formal referral steps, cases are anticipated to be active slightly longer as it takes extra time for the intake/referral step), or whether or not parties arrive prepared for the case or need to be sent back to provide required documentation.

Based on the materials and underlying assumptions built into the UFC model, it is anticipated that at UFCs, only the most complex and difficult cases go to court and that many other cases can be referred to and resolved through out-of-court resolution mechanisms. As such, cases recorded in the registry files at the courts would tend to represent the more complex cases at UFCs, which could take longer to resolve. At traditional court locations, where access to out-of-court services is more limited, it can be assumed that cases recorded in the court registries represent a full range of cases, from less to more complex. However, due to the fact that case complexity can depend on the attitudes of the parties more than on what type of issue is at stake, it is difficult to fully capture and control for case complexity when it comes to time to resolution. These caveats need to be taken into account for the interpretation of the findings related to time to resolution.

Interpretation of the timeliness of resolution measure is further complicated by the fact that "timely resolution" could mean different things to different people, depending on the issues at hand and other circumstances. It was stated by several judges in key informant interviews that the time to resolution often depends on how complex a case is, how well parties get along with each other, to what extent they cooperate with court orders and many other intervening factors that cannot be reliably tracked through a large-scale file review. Therefore, parties to a case might consider the resolution timely despite the fact that it took over a year to resolve the issues, whereas other parties might not consider resolution to have been achieved in a timely manner even though the case was closed after four months. A few judges pointed out that not all cases are ready to move through the system at the same rate and parties moving through the resolution process before they are ready can be detrimental in the long run (i.e., these parties are more likely to return to court with the same or additional issues).