Introduction

Background to the research

Access to justice can be defined in many ways. The Department of Justice Canada has an internal definition which illustrates the broad nature of the term:

Enabling Canadians to obtain the information and assistance they need to help prevent legal issues from arising and help them to resolve such issues efficiently, affordably, and fairly, either through informal resolution mechanisms, where possible, or the formal justice system, when necessary.

Dispute resolution is the process of resolving disputes between two or more parties. Disputes may be resolved through court (litigation) or through out-of-court mechanisms such as mediation or conciliation.

In the area of family justice, using the courts to resolve disputes upon separation or divorce for such issues as each parent’s decision-making responsibilities and time with their children, child and spousal support and division of property has proven to be expensive, lengthy and difficult for the parties. As such, governments have long tried to encourage the use of mediation or conciliation – dispute resolution outside of the courts – to resolve issues.

During the COVID-19 pandemic, access to family courts was limited with only “urgent” matters being heard in most jurisdictions for some time. In July 2020, Federal, Provincial and Territorial (FPT) Deputy Ministers tasked an Ad Hoc Working Group that would look at how the pandemic impacted access to justice in family and poverty law.

The Working Group chose several system-focused and people-focused indicators to best measure access to justice.Footnote 1 The first system-focused indicator chosen by the Working Group was the number of cases before the courts in the year preceding the onset of the pandemic (2019/20) and in the years during the pandemic (2020/21 and 2021/22). This indicator, on its own, had challenges. If parties were being discouraged from using the courts due to pandemic restrictions and encouraged to use alternative services to resolve disputes, does this court case indicator 1) demonstrate whether people had access to justice, and 2) demonstrate any change to that access? Hence the need to include another system-focused indicator, “Participation in family justice services”, specifically:

The number of participants who completed family justice services (by type, by year pre- and during COVID-19. Two services are being tracked:

  1. Parent education/information sessions; and
  2. Government-funded out-of-court/early dispute resolution services (such as mediation or conciliation).

However, it became apparent during the collection of the family justice services numbers from the jurisdictions that there was not necessarily conformity among the services offered by government funded out-of-court dispute resolution services.

To better understand these services, how their outcomes are measured and what success means, a supplementary research project was developed. In 2023 the Department of Justice Canada contracted with Catherine Tait Consulting to research government-funded out-of-court dispute resolution services provided in Canada that assist families experiencing separation and divorce. The purpose of this research is to better understand these programs, with a focus on the following questions:

  1. What are the mediation or conciliation services/programs offered by provinces and territories to resolve family law issues?
    1. What do these services look like?
    2. At what point in court proceedings are they mandated? Or offered, if voluntary?
    3. How many sessions are provided?
    4. Who provides them?
    5. What data are captured about them and who participates? How are these data collected and reported?
    6. Who funds the services?
  2. How are outcomes measured? What is a successful outcome? Partially successful outcome?
  3. Which of these factors are consistent across jurisdictions?

This report outlines the research findings. The two next sections describe the research scope and methodology. This is followed by a summary of the commonalities and differences among programs, focussing on the programs’ scope, service delivery model, response to and impacts of the pandemic, other recent changes impacting the programs and their service volumes, success indicators and data collection.

Research scope

The researcher worked with a project team comprised of members of the FPT Ad Hoc Working Group and officials from the Department of Justice Canada to confirm the scope of programs that would be included, as well as an interview guide. The programs and services researched for this report: