Available and Affordable Family Justice Services across Canada

Categories of services

As noted above, given the wide disparity amongst Canadian jurisdictions’ geography, population distribution, and socioeconomic realities, this paper has identified a continuum of service categories that families need, regardless of where in Canada they reside. The service categories are the following:

While not all families necessarily need all services in every case, this continuum of services responds to the different needs of families at different stages of the separation and divorce process.  Parents who are at the beginning of their separation generally require different support than those who have been divorced for years.

At the start of the process, and often throughout the process, parents need education about the impacts of separation and divorce, and information about the law and steps they need to take to establish new family arrangements. Next are services that assist families resolve their issues both in court and out of court. Once parenting and support arrangements have been established, parents may need assistance to comply with them, or to enforce the terms of orders or agreements. And because families evolve, children mature, and circumstances change, providing a means to update parenting arrangements, support and safety measures is also in the best interests of the child and therefore part of this continuum of services.

1. Information and education

88% of participants believe the workshop will help reduce the impact of separation or divorce on their children by helping single parents to deal with children and their feelings

(Bacon, B., “Evaluation of the Saskatchewan Justice Parenting After Separation/Divorce Program”, 2004, p. 71)

Information is fundamental to helping families through separation or divorce.  When parents first separate they are faced with the need to make major changes in their lives that will impact them and their children. They may need to find a new place to live, make important decisions about their children and create new financial arrangements with their former spouse. At the same time they may be grappling with feelings of loss, anger, hurt, and uncertainty about the future.

At the initial stages of separation and divorce, parents need information that can help them begin the process of making decisions in the best interests of their children. They also need to understand how separation and divorce can affect children.

Providing information at the start of the separation and divorce process can help parents to clarify their issues, identify their priorities, understand the alternatives they face and consider their next steps.  As families move through the process of separation or divorce, they may need further, more specific information about the processes they are involved in, and about ways to sustain, change or enforce the original decisions regarding their post-separation parenting and financial arrangements.

Public Legal Information and Education (PLEI) services provide information that applies to most families – information about the law, dispute resolution options, court processes and parenting dynamics is needed by nearly every family.  PLEI can be provided in written form, videos or through in-person presentations. Examples include dedicated family law websites, publications and handouts on legal topics or services, and parent education seminars.

Information that is more tailored to the circumstances of each family almost always involves a professional or staff member talking one to one with the parents to determine their needs.  Family-specific information is provided by staff of family law information centers or resource centres and inquiry lines.

“Almost three-quarters of the survey respondents who used the Resource Room reported finding all or most of the information they required”

(R. A. Malatest & Associates, “Nanaimo Justice Access Centre Implementation Evaluation”, 2009, p. 40)

The federal government, all provinces and territories and many non-profit PLEI agencies provide publications and operate websites about family law. As well, in-person parent education programs have a good presence in urban centres in nearly every Canadian province and territory. However, parents in rural areas and remote communities do not have easy access to in-person sessions and some provinces have begun to make these programs available online, by video conference or on a CD-ROM, greatly expanding the reach of these services.

Publications, websites, inquiry lines and parenting education programs are provided free of charge to the public. With a wide range and variety of free products available to the public, information and education services have the greatest reach and accessibility of any type of family justice service in Canada. The per-case cost to provide information and education services is significantly lower than the cost of many other forms of family justice service.

2. Assistance to resolve family breakdown issues outside of court

Resolving issues outside of the court is a critical service for families. As stated in A Roadmap for Change

Families going through a separation or divorce have to resolve issues such as parenting arrangements, child and spousal support. Some also have property to divide. For most families, resolving these issues outside of court offers many benefits. Because parents will have an ongoing need to make decisions about their children as family circumstances change and children mature, it is better if the process to reach these decisions does not further damage the parents’ relationship. Consensual approaches to resolving these issues can reduce conflict between parents; litigation, however, can often intensify conflict. 

Furthermore, spouses and parents are best placed to make decisions for themselves and for their family. It is also easier for families to live with an agreement that they negotiated themselves than an order made (imposed) by a court. Success rates for mediation are often as high as 70% to 85%.Footnote 5 Mediation and other out-of-court processes are usually faster than court, and can be significantly less expensive for the parties and the system. Resolving separation and divorce cases by agreement also reduces the pressure on courts, making them more available for those cases that require adjudication.

Services that assist parents to resolve their issues out of court usually include a triage, intake or screening process as a first step, to ensure that the issues and the family situation are appropriate for a consensual approach to dispute resolution. The dispute resolution services available include mediation, conciliation, and negotiation.

Some jurisdictions also provide services that assist parents to determine child support amounts without going to court. In 2016, Ontario implemented an online child support service that allows separated parents to establish and update child support obligations through an online portal, without going to court.

Publicly funded out-of-court dispute resolution services are available in most provinces and territories. Several jurisdictions provide dispute resolution as a government service. These services vary in the number of hours of service provided, the scope of issues addressed, requirements to attempt mediation and the use of fees. Out-of-court dispute resolution services are also offered by the private sector, for example collaborative law, arbitration, and mediation.  Government may provide a regulatory framework to encourage the use of out of court services, for example, by requiring family law lawyers to discuss with their clients the possibility of attempting mediation before they can bring a court application.

“Judges indicated that, although the types of services funded by the SFI such as mediation are effective and well targeted, mediation is not available widely enough in all jurisdictions.”

(Department of Justice Canada, “Supporting Families Experiencing Separation and Divorce Initiative Evaluation Final Report,” 2014, p. 44)

The 2014 evaluation of the Supporting Families Initiative (SFI)Footnote 6 found that family justice officials and judges were cautious about the availability of dispute resolution services in remote and geographically isolated areas and for cultural and linguistic communities. Footnote 7

The availability of consensual dispute resolution services, even where offered, may not be sufficient to meet demand, resulting in waits for service. If wait times to attend dispute resolution services are long, parents may seek to resolve their issues through the courts instead of through out-of-court services, or if they can afford it, through private services. Some jurisdictions report waits of three to five weeks to access mediation services for which people are eligible.

The introduction of distance services has increased the reach of dispute resolution services.  Distance mediation can be provided by teleconference, videoconference or using web-based platforms that provide audio and video connections. BC provides distance mediation services to parents who live in different communities or where in-person services are not available.

Publicly funded consensual dispute resolution services are designed to be affordable for families in all jurisdictions where they are provided. Services are provided without charge to families in most provinces and territories. In some of these jurisdictions, free service is available only to low-income families or low income-families are given priority for service. Three provinces have sliding scale fees for service, with no fee, or very low fees for the lowest-income clients.

Out-of-court dispute resolution services are relatively expensive for governments to provide.  They typically involve at least a few hours of professional staff time per case, and can involve several hours for some cases. Nonetheless, the cost per case of out-of-court resolution processes is still considered to be less expensive for government than court adjudication.

3. Assistance with court processes

Some couples require a court process to resolve their issues. It may be that they are unable to reach agreement or that consensual dispute resolution approaches are not appropriate to their situation, for example, if there are family violence issues. And, only a court can grant a divorce.

However, the court process can be daunting to many. Different levels of court, laws and regulations, court rules and forms, and the formality of court proceedings can all be very difficult to grasp. Even uncontested matters require completion of court forms, filing and service processes. The exponential increase in self-represented litigants has created challenges for both the court system and the litigants themselves as they attempt to navigate complex court rules and processes designed for highly trained professionals.Footnote 8

Supports for self-represented litigants include self-help materials and assistance with court forms. Court case management and case conferencing services help to minimize contested issues and ensure that cases are ready to proceed.  Legal advice lawyers, duty counsel and lawyers providing unbundled legal services assist litigants with some aspects of their family law cases.  In difficult custody and access cases, the courts can order parenting assessments to provide neutral information for the court. All Canadian jurisdictions provide guides, online tools or assistance for families dealing with the complexities of obtaining an inter-jurisdictional support order. The federal government has a Central Registry of Divorce Proceedings to detect duplicate divorce proceedings and assist courts and parties to minimize court costs.

Finally, some jurisdictions have children’s lawyers to represent the interests of children in their parents’ legal dispute.

“I think the service is extremely good. The average person has no idea about litigation. Certainly having a place like this helps a lot.” (SCSHC user)

(Malcolmson, J., Reid, G., BC Supreme Court Self-Help Information Centre Final Evaluation Report, 2006, p. 43)

The availability of government services that assist with court processes varies widely. Written guides and self-help kits for unrepresented litigants are available online in most jurisdictions. In-person assistance with court processes and forms is provided in fewer jurisdictions, and usually only in larger centres. Case conferences and settlement conferences are quite common in provincial or superior court, and operate in most jurisdictions.

Family Advice Lawyers and Duty Counsel services are available in six jurisdictions only. Within those jurisdictions, some are available province-wide, but others offer these only in larger centres. Children’s lawyer services are available in only five jurisdictions. Parenting assessment services are available in almost every jurisdiction. These assessments are provided free of charge in several jurisdictions but partial or full fees apply in six jurisdictions. Publicly funded services can only be accessed by court order and wait times to obtain a report can be significant.

While courts, particularly superior courts where divorces must be obtained, have filing and sometimes hearing fees, most services to assist with the court process are provided free of charge. Self-help materials for self-represented litigants are usually free as is in-person assistance with court processes and forms where available.  

Materials and kits provided online are inexpensive for government to provide.  However in-person services to assist with court processes, particularly those provided by professionals, can be expensive to provide. Higher-cost services are usually either income tested to limit their availability to those who could not afford them otherwise, cover a limited scope of issues, or have long waitlists for service.

4. Updating / varying family obligations

Often families need to update or vary the terms of their original agreements or court orders as their circumstances change. Original arrangements may need adjustment as children mature. Child support may need to be varied as a result of these adjustments, or because the payor’s income has increased or decreased.

Many of the services that assist parents to create initial arrangements also serve them when they need to update and vary their family obligations. For example, information about the process to vary a court order, and self-help kits designed specifically for support variation, exist in many jurisdictions. Consensual dispute resolution services may also help families reach new agreements to change their parenting arrangements and support.

One service designed specifically for keeping child support obligations up to date has been implemented in many provinces: child support recalculation services. In general, these services require parents to register their child support orders with the service. Support payors are required to provide income information to the service in a specific timeframe. Staff of the services recalculate the child support amount according to the updated income information and the applicable child support guidelines, and then notify both parties of the recalculated amount. The support amount determined by the recalculation service becomes the new, legally enforceable amount due, determined without the need for parents to return to court for a variation of the original child support order. Recalculation services have various means for parties to dispute the recalculated amount if they disagree with it.

Child support recalculation services are now available in nine jurisdictions. Although widely available in most jurisdictions where they are offered, the eligibility criteria for recalculation services limit the number of families who can use them. Child support orders where judicial discretion was exercised to determine an original support amount are generally not eligible for recalculation services. This may include situations where the court imputed a payor’s income, shared custody arrangements, and where the payor is self-employed or earns corporate income. It also includes many instances of shared special expenses.

Most recalculation services are provided to parents free of charge but two provinces charge recalculation fees. Recalculation services are administrative by design, and are less expensive per case for jurisdictions to provide than face-to-face services such as mediation or court.

5. Facilitating compliance with family obligations

During the separation and divorce process, parents, family justice services and courts work to establish parenting arrangements and support obligations that are in the best interests of the children. However, for these agreements and orders to be effective, parents must comply with their terms. If parents fail to comply with their obligations, there will be negative consequences for the children, for example, the absence of a non-involved parent, or a reduced standard of living where support is not paid. 

Attempts to enforce compliance through the court system can be difficult, costly and often unproductive. Maintenance Enforcement Programs (MEPs) facilitate the regular payment of child and spousal support and use enforcement action when cases fall into arrears. The federal government assists MEPs through Justice Canada’s Family Law Assistance Services (FLAS).Footnote 9 FLAS provides information from certain federal information banks to help trace persons who have breached a custody or support order, intercepts federal moneys to satisfy family support obligations and facilitates the denial of federal licences and passports to compel compliance.

MEPs operate in all Canadian provinces and territories. Just over 60% of families with children under the age of 23 who have a court order or court-registered written agreement for spousal or child support, or both, are enrolled in a MEP.Footnote 10 Deterrent penalties and service fees have been introduced by MEPs in several jurisdictions. Examples include penalties for non-sufficient funds (NSF) cheques and fees for accounts that are in default. Federal enforcement services provided by FLAS are available free of charge to applicants (usually MEPs) but support debtors are charged a yearly fee if garnishable moneys are available after the terms of the garnishee summons have been satisfied.

Supervised access and supervised exchange services allow parents to comply with child access and visitation orders in a safe setting. When a judge feels that access between a parent and child is in a child's best interests, but there are safety or other concerns, the judge may order that the parent’s time with the children, or exchange of children from one parent to the other for an access visit, be supervised by a third party. A court order is required to use these services in some jurisdictions; others allow parents with an agreement for supervised access or exchange to participate as well. Publicly funded supervised access and exchange services are not widely available in Canada. Only one province has service in all court districts; another three provinces provide service in a limited number of sites. Supervised access and exchange services are free in one province; two provinces charge modest fees.

A relatively new service in the private sector, parenting coordination, provides out-of-court management of the ongoing relationship between high-conflict parents, addresses disputes as they arise and facilitates compliance with court-ordered arrangements. Once separated or divorced parents have a parenting plan or court order in place, they may use the services of a parenting coordinator rather than going back to court to manage new disputes that arise. Parenting coordinators attempt to resolve their disputes using consensual methods. Where settlement is not possible, the coordinator makes a determination in the best interests of the children; both parents are bound by the coordinator’s decision. The role of government has been to establish the legal and regulatory framework to support parent coordination.