Unified Family Court, Summative Evaluation
6. Cost-Effectiveness Issues
This section of the report responds to two sets of evaluation questions:
- Is the UFC model a cost-effective approach to achieving the federal government's goals and objectives as they pertain to family law?
- Are there any alternative ways to achieving the UFC objectives?
6.1. Cost-effectiveness of the UFC Approach
At the time of the last UFC expansion in 1998, it was agreed that any provincial judicial salary and benefits savings incurred by provincial/territorial governments as a result of elevations from the provincial court out to the UFC would be re-invested in FJS. While it is anticipated that provincial governments did in fact make this re-investment, it is not possible to specifically track those funds. Also, these savings could be re-invested in a number of ways, not necessarily at UFC sites.
Court administrative resources are streamlined as only one court registry is required for all cases/issues and frontline staff develop specialized knowledge dealing with the procedures and the families experiencing separation and divorce.
Judges generally felt that two levels of court addressing family justice matters can be costly and not in the best interests of those being served.37 There is some evidence to suggest that the UFC model enables a unique approach to service delivery in family law. Through intake appointments with specialized staff, families experiencing separation and divorce can be assisted in navigating the litigation process more easily, ensuring that time spent with a judge is reserved for issue resolution rather than procedural aspects of a case. In addition, as outlined in Section 5 of this report, the UFC model has contributed to increased access to family justice information services such as FLICs and intake services. As a resource to enable clients to navigate the court process with more ease and inform them about opportunities for resolution outside of court, FLICs and intake can also assist in streamlining the litigation process.
These types of services are particularly relevant in the context of increasing numbers of SRLs. Judges reported that time is spent on leading SRLs through the procedures of the court.
Results for the intensity of court usage indicate that UFCs may be more efficient than traditional non-unified 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. As can be seen in Table 5-3, the total number of court activities per application/new filing is lower in the UFCs than in the non-UFC comparison locations.38
Table 5-3: Average and Median Court Activities and Applications by Type of Court
| Characteristics | Mean | Median | Minimum | Maximum |
|---|---|---|---|---|
| Total Number of Court Activities per Application | 1.77 | 1.00 | 0 | 24 |
| Total Number of Applications/Filings per Case | 1.85 | 1.00 | 1 | 8 |
| Characteristics | Mean | Median | Minimum | Maximum |
|---|---|---|---|---|
| Total Number of Court Activities | 2.77 | 1.00 | 0 | 17 |
| Total Number of Applications/Filings per Case | 2.18 | 1.00 | 1 | 5 |
| Characteristics | Mean | Median | Minimum | Maximum |
|---|---|---|---|---|
| Total Number of Court Activities | 1.79 | 1.00 | 0 | 24 |
| Total Number of Applications/Filings per Case | 1.84 | 1.00 | 1 | 9 |
Another possible way to assess UFC performance is to examine the number of repeat applications within cases. Repeat applications provide an indication of the intensity of court usage. They indicate that parties need to return to court with unresolved or new issues after first opening their case file. Results presented in Table 5-3 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.
6.2. Alternative Models
6.2.1. Canadian Alternatives
Dispute resolution mechanisms and FJS are supported and developed by the provinces/territories independently of the UFC. As a result, these services are not unique to UFC sites but can be found to varying extents in many provincial and superior court sites that follow the traditional (non-unified) court model. Quasi-UFC locations identified for the evaluation were selected because they closely resemble the UFC model in many respects. In essence, the key difference between the UFC and quasi-UFC is the lack of a unified jurisdiction in the latter; therefore, the hypothesis is that UFCs will perform at least as well as quasi-UFC locations. The results support this hypothesis.
As highlighted in Table 6-1, a higher proportion of cases at UFC locations (29.7%) accessed some type of dispute resolution mechanism than at the quasi locations, taken in aggregate (23.3%). It appears that the lower rate of FJS usage in the quasi-UFCs is the result of low utilization in the superior court, as the highest rate of utilization was recorded for the provincial quasi-UFC sites (33.1%).
| Site Type | Dispute Resolution Mechanisms Accessed | |
|---|---|---|
| N | % | |
| UFC (n=640) | 190 | 29.7 |
| Provincial - quasi (n=532) | 176 | 33.1 |
| Superior - quasi (n=337) | 26 | 7.7 |
| Total Quasi-UFC (n=869) | 202 | 23.3 |
| Total (n=1509) | 392 | 26.0 |
The case file review revealed that UFCs performed better in terms of utilization of FJS (Table 6-2). Twice as many cases in UFC locations recorded FJS utilization in the court registry files (21.3%) as compared to quasi-UFCs when provincial and superior locations were combined (10.7%). Again, this is a function of the low rate of utilization of FJS recorded in superior quasi-UFCs files. Overall, however, these should be interpreted with caution as information on utilization was not consistently recorded in case files and the results might be a reflection of registry procedures rather than actual utilization.
| Site Type | FJS Utilization Recorded in Application | |
|---|---|---|
| N | % | |
| UFC (n=640) | 136 | 21.3 |
| Provincial - quasi (n=532) | 78 | 14.7 |
| Superior - quasi (n=337) | 15 | 4.5 |
| Total Quasi-UFC (n=869) | 93 | 10.7 |
As summarized in Table 6-3 below, provincial quasi-UFCs recorded the highest proportion of applications going to trial (3.2%). These findings suggest that factors other than the court model and access to dispute resolution mechanisms determine whether a case proceeds to trial or not.
| Site Type | Applications that went to Trial | |
|---|---|---|
| N | % | |
| UFC (n=640) | 11 | 1.7 |
| Provincial - quasi (n=532) | 22 | 4.1 |
| Superior - quasi (n=337) | 6 | 1.8 |
| Total Quasi-UFC (n=869) | 28 | 3.2 |
Other Canadian alternatives to the UFC model (that were not included in the file review for the current evaluation) include family law proceedings under the revised Family Law Act that came into effect in Alberta in 2005. The Act aims to create a simplified, integrated family justice model by streamlining family law procedures. Under the new Act, most applications can be made to both the provincial and superior courts. Applications for divorce and the division of family property still have to be made to the superior court only. All other matters can be handled by the court at which the application is filed. The Family Law Act replaces the Domestic Relations Act, the Maintenance Order Act, the Parentage and Maintenance Act, and parts of the Provincial Court Act and the Child, Youth and Family Enhancement Act. In addition to integrating some of the responsibilities of the two levels of court, the Act is designed to increase access to and encourage the utilization of ADR and FJS.
6.2.2. International Examples
Many countries have adopted family justice strategies and introduced family court initiatives designed to achieve objectives similar to those which the UFC is trying to achieve. Key features of models for the delivery of family justice in the United States, Australia and Germany will be highlighted here. These models were selected because of their alignment to federal goals and objectives for family justice in Canada.39
United States
The concept of a unified family court has been explored by and implemented by several states in the US, although it differs from the Canadian concept, in that it focuses on unifying jurisdiction over all matters involving domestic relations or family dispute (e.g., dissolution, paternity, custody, visitation, domestic violence, etc.) with juvenile cases (e.g., dependency, delinquency, status offenses, juvenile traffic matters, adoption, abuse and neglect, etc.).40
Examples of unified family court initiatives that have been implemented in several states include:
- The Unified Family Court Pilot Project in Colorado (launched in 2000): Cases with dependency and neglect filings were randomly assigned to the new Family Court Division or traditional court processing.41 Cases assigned to the Family Division were managed by a single judge/magistrate and the Family Court Facilitator, and reviewed by two Multi-Disciplinary Review Teams (MDTs) after an initial status conference. The purpose of the MDTs was to offer recommendations about additional or different services that the families might need.42
- Three Unified Family Court Pilot Projects in Indiana (launched in 2000): Each pilot project followed a slightly different design. The Monroe County pilot project included a marital court that assumed jurisdiction over complex separation and divorce matters to provide monitoring and supervision as required. Complex cases were defined by criteria such as
- (1) one or both parties without legal representation,
- (2) a family history of low compliance with court orders or negotiated agreements, and
- (3) case issues that are inappropriate for, or have not been settled by, ADR services.
- Family Court Pilot Projects (Kentucky, 1991): In 14 pilot sites, a unified family court was established, using a one family, one judge model. Implementation revealed the need for additional administrative support to meet the needs of both the judiciary and litigants. Each pilot is headed by a chief judge, supported by a Family Court Administrator who organizes and manages all non-judicial affairs. The administrator assists in case flow management while acting as a general liaison between court officials, the public, and community agencies.44
- The Unified Courts for Families Program in California (launched in 2002): A key component of the program was the establishment of six "mentor courts" that implemented various strategies for coordination and unification of family and juvenile proceedings, including those matters involving members of the same family with cases on multiple court calendars.45
Overall, the findings revealed that the pilot projects have been successful at increasing access to support services for families and increasing client satisfaction with court proceedings and support services, including ADR mechanisms.
Australia
Both the Family Court of Australia and the Federal Magistrates Court of Australia have jurisdiction over family matters in all states and territories, with the exception of Western Australia which has its own Family Court. Although Australia does not have a combined jurisdiction, it has processes and goals similar to UFCs in Canada.
The two levels of court are independent but cooperate to provide streamlined access to the federal family law system. Like the UFCs in Canada, the family courts in Australia aim to provide a simplified path through the family law system, access to services for the resolution of family disputes, and a single point of filing. In 2004, the Combined Registry Program was introduced. The program entails 16 different projects that fall into two groups: projects designed to have a direct impact on parties and legal practitioners and projects designed to improve court internal processes. The Combined Registry Program aims to provide simplified access to the two family law courts by harmonizing the rules of the courts, providing common points of access to both courts, improving case transfers, establishing a combined case tracking system and providing extensive information and support to parties navigating the family courts.46
In addition, changes to Australia's Family Law Act in 2006 support a less adversarial approach to hearing family cases. The Less Adversarial Trial (LAT) Model's Trial has been the subject of extensive evaluation. One evaluation specifically explored the impact of the program on parenting capacity and child well-being by comparing data from parents participating in LAT with similar data from parents in a control group whose cases were going through the standard process. The evaluation found that the LAT group reported more satisfaction with post-court access and custody arrangements, significantly less damage to the parent-child relationship, and greater contentment and emotional stability in children after court. The overall evaluation report completed as part of this study found that the less adversarial and more child-focused process of LAT helped parents to parent more cooperatively. A follow-up evaluation in 2007 found similar results.
Germany
Family law in Germany is a matter of shared jurisdiction in terms of policy-making/decision-making, but is implemented solely at the provincial (Laender) or local level. Implementation of all aspects of family law is the responsibility of local district courts (Amtsgerichte). Family law cases are handled by specialized separate departments, including a specialized bench, of the local district courts. If the overall value of a claim is high or the matter is more complex, cases will be handled at a provincial court (Landgericht).
There is little information available regarding the performance of specialized family courts in Germany. However, the aspect of self-representation is worth noting in this context as it is a key feature of family law cases in Germany that is closely tied to having one specialized court for family disputes. Legal representation is mandatory in divorce cases in Germany. This has been criticized as creating a barrier for low-conflict or consent divorces where costs of legal representation are often seen as an unnecessary burden to litigants. In addition, involving lawyers can add a potential for conflict where no conflict exists between the parties themselves. To avoid this as much as possible, family lawyers generally undergo specific training that focuses on minimizing conflict. In addition, if both parties agree, the defendant party can opt out of legal representation. In this case, only the initiating party needs a lawyer, which serves to reduce costs (although they still average 1,500-2,000 Euros in consent divorces) and the potential for "artificial" conflict.
Other family law matters can, in theory, be handled without legal representation, if they are handled at the local district court. Lawyers are mandatory for all issues in the regional/provincial court. Since legal representation is mandatory for divorce issues at both levels of court and for all issues in regional/provincial court, self-representation can be assumed to be rare in family law cases in Germany. Mandatory legal representation is often understood to be linked to the family court per se, rather than the case matter at hand. Therefore, ensuring that all family law matters are heard in specialized courts is associated with mandatory legal representation at these courts.47
Summary
In Canada, the quasi-UFC model is an alternative to the UFC. The key difference between the UFC and quasi-UFC is the lack of a unified jurisdiction. Internationally, the concept of a unified family court in the US differs from the Canadian UFC concept because it focuses on unifying jurisdiction over all matters such as domestic relations or family dispute with juvenile cases. Australia does not have a combined jurisdiction but it has processes and goals similar to Canadian UFC model. In Germany, family law is a matter of shared jurisdiction in terms of policy-making/decision-making, but is implemented solely at the provincial level. Family law cases are handled by specialized separate departments, including a specialized bench. In addition, legal representation is mandatory in divorce cases.
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