Available and Affordable Family Justice Services across Canada

Introduction

While much progress has been made, concerns continue to be voiced by the media, judiciary, lawyers, academics and the public about the delay, costs and lack of necessary resources and services in family matters.

In October 2013, the Action Committee on Access to Justice in Civil and Family Matters released A Roadmap for Change,Footnote 1 a report that describes the current system as “inaccessible” and unsustainable. It calls for a culture change and draws a “roadmap” to make access to justice central to all discussions on reform. The Family Justice Working Group of the Action Committee prepared a report, Meaningful Change for Family Justice - Beyond Wise Words,Footnote 2 which examined the barriers to changing culture:  the limited resources available for the family justice system and the continued influence of the adversarial system.

This paper provides an overview of the types of affordable family justice services available to separating and divorcing families across Canada in the following areas:

Why are family justice services needed?

Family justice services facilitate the timely and just resolution of legal issues that arise during separation and divorce, such as disputes about child custody, access, guardianship and support. Services make the family justice system more responsive to the needs of families and promote resolution of legal problems in the best interests of children. Family justice services help parents to understand their issues and responsibilities, to resolve disputes with less conflict, and to update their arrangements when circumstances change. An important objective of most family justice services is to keep families out of court, or to reduce court involvement to a minimum.

Availability of service

One measure of whether families have “access” to a service is its availability. Availability relates to:

Capacity to meet demand

A key aspect of availability is the capacity of a service to serve all those who seek its services. All publicly-funded programs work with limited resources, and the demand generally outstrips the capacity of many programs and services. Staffing levels may be sufficient to meet only a portion of the potential demand for a service. Situations where the demand outstrips the service capacity can translate into measurable waitlists, backlogs, or delays.

In order to achieve a reasonable level of capacity for those with the greatest immediate needs, some services have defined timeliness standards, particularly for urgent matters. Other levels used to manage demand include income screening/ income capping, clear definitions of the population that is considered the highest priority for service, and targeting services to particular types of issues and disputes, for example by excluding property division or complex spousal support matters services to focus on parenting and child support.

Service location and hours of service

Some family justice services are provided in-person only in larger communities, while families living outside those communities have to incur costs such as travel and time off work to access those services. Clearly, jurisdictions that encompass large geographic areas with low population densities face greater challenges in providing local services to their residents.

Recent evolutions in service delivery and the increased use of online and distance services are expanding service reach and allowing greater access for more Canadians. These innovations create capacity to serve a much broader geographic area and increase the proportion of the population who can be served. However, these innovations require access to technology that is not available to everyone, especially in rural or remote areas. For example, in the Northern jurisdictions, there is very limited internet access and the access that is available is costly.  While this limiting factor cannot be ignored, reasonably priced broadband internet access is increasingly available to many who historically had limited access. The CRTC estimated that, as of 2014, high speed broadband service was available to 96% of Canadian households.Footnote 3

The scheduled hours during which a service operates also impacts service availability. When a service’s hours of operation conflict with regular work schedules, clients may need to take time off work to access the service. This has negative financial consequences for families already dealing with high stress levels. This can be addressed by making services available after regular hours and on weekends. Extended hours may be particularly needed in urgent cases, such as in a case of family violence.

Clients facing unique barriers

Given the wide disparity amongst the various Canadian jurisdictions with respect to geography, population distribution, and socioeconomic realities, this paper has not defined which affordable services should be available across all jurisdictions. Instead, the paper identifies categories of service that separating and divorcing families need, regardless of where in Canada they reside.

What is meant by “affordable” services?

A service is considered to be “affordable” if the cost for families does not limit, or prohibit, access to that service.

There are two dimensions to cost that families may incur: the direct cost of the service that the client pays through service fees and the indirect costs that the client bears in order to access a service, such as travel costs, time off work, child care costs, or costs to access online services. Both types of costs have the potential to limit access, and both can be addressed, to some extent at least, in the design of family justice services.

A number of service models eliminate or reduce the direct cost of the service for clients. These models include services that are provided

Means-tested services have operationalized the concept of “affordable” for their services. Specifically, they have defined the income levels at which the provision of free (or subsidized) services are deemed necessary in order to prevent cost from preventing access to the service for those of limited means. Implicit in the use of means tests, reduced fee and sliding scale models is the concept that clients with greater financial means or ability to pay can access the same or similar services for a fee from another source, usually in the private sector. Mediation and legal aid are good examples of this. However, some services are only operated by the public sector, such as court-mandated parent education programs.

The affordability of a service is influenced by its capacity to provide timely access to the service. A service may be compelled to provide free services only to clients with very low incomes in order to preserve timely access to the service for those who have the least ability to pay.

The question of service affordability is also viewed through the lens of government expenditure. Most publicly provided family justice services involve some level of subsidy. Even where fees are charged, these services usually do not recover the full cost of the service from its users.

The cost per client served varies by how a service is delivered. Clients may access general legal information over the internet, or participate in group education sessions at a comparatively low per-client cost. However, when parents need services that address their individual circumstances, mediation for example, the one-to-one provision of service is comparatively more expensive.

When families experience breakdown, the steps they need to take will necessarily involve some level of direct and/or indirect cost. Even accessing free services will entail indirect costs of some type such as transportation, day care, loss of wages. By striving to establish affordable services, the expectation is not that this will entail no cost at all for families, but that the costs are reasonable and therefore do not limit access to a needed service.

Family law is an area of shared jurisdiction between the federal government and the provinces and territories. The federal government has legislative authority for divorce while provinces and territories have legislative authority for other areas of family law. Provinces and territories also provide services to families undergoing separation/divorce as part of their responsibility for the administration of justice. Over the past 25 years, both levels of government have worked together to address family justice issues, as both wish to reduce the impact of family breakdown on families and children. Both have invested in program development and operating costs.

The federal government makes financial contributions to support the delivery of family justice services by the provinces and territories. Federal funding results in increased access to the family justice system and ability to provide improved  levels of service; greater  opportunities for innovation that improves communications, services, efficiency and use of consensual dispute resolution processes; increased court efficiency; and increased  confidence and satisfaction for families accessing the legal system.

Establishing family justice services requires funding by both the federal as well as provincial/territorial governments.

The role of government, non-government organizations and the private sector in service delivery

Family justice services are delivered by both levels of governments as well as by non-government organizations (NGOs) and the private for-profit sector. This report focuses on the role of government but acknowledges that there are a wide range and depth of services provided to Canadians outside of government. Collaborative efforts between government, and the NGO and private sectors, for example pro bono legal aid clinics, have benefitted Canadian families, and there is ongoing need for more collaboration. In A Roadmap for Change, the Action Committee on Access to Justice in Civil and Family Matters suggested that “(t)he ways of the past — often working in silos and reinventing wheels — are not sustainable. A coordinated, although not centralized, national reform effort is needed.”

Government itself has multiple roles in family justice service delivery. Across Canada, government staff are direct service providers to families and citizens. In many cases, government also funds NGO and private sector organizations to deliver services. Government also has a role in regulating and enabling private service delivery through the creation of legislation and regulations. For example, the Divorce Act and some provincial/territorial legislation requires that lawyers talk to their client about mediation or the advisability of using alternative methods to resolve their matters. Another example is British Columbia’s Family Law Act, which sets out standards and creates a supportive environment for the practice of parent coordination.

The family justice system and services beyond the scope of this report

This paper is focussed on family justice services. Some components of the family justice system are not addressed including the courts and legal representation provided by the family bar and through legal aid plans.

The focus of this paper is not meant to diminish the importance of the courts and legal counsel in the system. Courts are perhaps the most common “service” that many families experience when going through a separation or divorce. Seeking an adjudicated resolution to their legal issues is a typical path for many Canadians, and as such the services provided by the court system itself cannot be minimized. For some matters the only means to achieve the desired result is through the court system, for example if a party wants to obtain a divorce certificate. Family law lawyers assist separating and divorcing parents with all stages of separation and divorce and their services are widely available in most communities, and legal aid and pro bono services help reduce financial impacts for some families, although they must generally meet income eligibility criteria. For the purposes of this report, the availability of court adjudication and private counsel – albeit with some costs – is taken as given in Canada.