Section 4: Promising Ideas, Models and Recommendations
Our interviews and literature review surfaced several preliminary recommendations, as well as promising models and ideas to address some of the barriers, inequities and challenges presented in the findings. It is important to note that there were several calls for increased consultation with Indigenous communities to co-create more comprehensive, distinctions-based and nuanced solutions.
4.1 Enhancing Accessibility
Cost, availability and proximity of legal services are all major obstacles to equitable access to the FJS for Indigenous people. Our interviews and the literature review outlined several potential approaches to increasing affordability and availability of legal services including:
- Increased funding for legal aid to provide access to more applicants, increase time allotted to Indigenous cases to support cultural awareness, and address geographical gaps in services. Roil (2014) and one interviewee suggested that separate financial means testing should be considered for Indigenous people, particularly those who live in remote communities to account for increased associated costs such as transportation and accommodations. The NIMMIWG specifically calls for increased funding of legal aid to support all Indigenous women, girls and 2SLGBTQQIA persons, and guaranteed access to free legal counsel for those who report an offence, including spousal violence (2019, art. 5.6, 5.13).
- Expanding legal education through public awareness campaigns and resources. These should leverage multiple modes of communication, including online, hard-copy and face-to-face consultations (Roberts, 2023). Some models include PEI’s toll-free legal information inquiry line14 and Manitoba’s Family Law Client Guide services (Manitoba Law Foundation, 2021), Ontario’s Family Law Information Centres, which offer information about court procedures and family law in courthouses (Link et al. 2018), and New Brunswick’s Family Advice Lawyer service,15 which offers up to two-hour consultations (Roberts, 2023).
- Decentralized or mobile services offering legal information or family law clinics in community-based spaces such as libraries, which can be more accessible and increase trust, particularly for equity-deserving populations. Partnerships with other agencies can also help to address transportation barriers (Roberts 2023).
- Incentive programs or core funding for regional clinics. To address gaps in services and increase cultural safety for Indigenous clients, and in particular for Indigenous women, there is a need to attract and retain family lawyers in small, rural and remote communities, Indigenous lawyers and legal staff, and female lawyers and legal staff. Potential approaches include adjusted tariffs for legal aid work (Roil, 2014), place-based education, succession planning and recruitment tools, networking opportunities, incentives to relocate (Skinnider & Montgomery, 2017), retention bonuses, core funding for regional clinics, or recruiting law school applicants from rural backgrounds who intend to practice in their communities (Roberts, 2023) . Some promising models from BC include the Rural Education and Access to Lawyers Initiative,16 the Mapping Her Path project17 and the Women Lawyers Forum.18 This responds to the NIMMIWG’s call to increase Indigenous representation in all Canadian courts (2019, art. 5.12).
- Translation and interpretation services, or increased Indigenous-language-speaking staff, with an attention to distinct dialect needs, particularly to address language gaps in Labrador and parts of Nunavut (Roberts, 2023).
- Integrated family services. In recognition that legal services are only one of many needs families face when experiencing relationship breakdown, there are recommendations and promising models of programs that are co-located with additional services, such as mental health, housing, financial supports, victim services, and other social supports (Law Commission of Ontario, 2012; Skinnider & Montgomery, 2017). Examples of community-based organizations offering Indigenous-based support for parents and families in conflict include Fearless R2W in Manitoba19 and the Ma Mawi Wi Chi Itata Centre in Winnipeg.20
- Accessible service options that are designed by and for Indigenous people living with various disabilities.
- Improved infrastructure for itinerant courts in remote and rural communities (Department of Justice Canada, 2022e; Gouvernement du Québec, 2019; Roberts, 2021).
4.2 Alternative Legal Models
The research surfaced promising models for legal services that can help to reduce costs, increase service reach, improve efficiency, and provide more culturally responsive services to Indigenous people. These included:
- Telejustice services. As described in Section 3.1.5, in some cases, online and telephone services can present a barrier to access for individuals with limited access to computers and Internet, limited literacy, and/or who feel more comfortable speaking in person. It is important that services be available through multiple avenues, including in-person, to meet diverse client needs. However, multiple jurisdictions are successfully improving access by offering legal information, services and court proceedings via telephone or online. In particular, telejustice services can increase access in rural and remote communities, or for families seeking support from an Indigenous lawyer where there is none practicing locally. As reported by Butler (2022), the expansion of telejustice services during the COVID-19 pandemic helped to reduce the time lawyers needed to allocate to each case, lowering costs for clients while allowing lawyers to take on more cases. One example of this model is the Ontario Telejustice project,21 which delivers pro-bono services to the Nishnawbe Aski First Nations in order to improve access without competing with local practitioners (Link et al. 2018).
- Support from non-lawyer professionals offering limited legal services, advice and referrals to address service gaps and offer reduced-cost services. These include paralegals, trained family law advocates (such as through BC’s Family Law Advocate Program, working under the supervision of lawyers), and other non-regulated legal professionals (such as staff operating services through navigator programs). These services can support families who are seeking increased information for non-judicial separation agreements, self-represented litigants, as well as families who are represented by a lawyer by reducing lawyer fees and protecting limited legal aid hours. Services offered include drafting court documents, accompaniment to mediations and court sessions, referrals, support applying for and appealing decisions regarding legal aid, translating legal terminology, providing emotional support, and preparing clients for what to expect throughout the process. Additional services offered by navigator programs include advocacy with court officials (including counsel and judges), restorative and culturally relevant justice, trauma informed services, etc.) (Department of Justice Canada, 2022e). Link et al. (2018) discuss the value of “legal incubator” models, where law students work under the supervision of a principal lawyer, mentoring into a law firm practice while offering more reduced-cost services. Furthermore, an evaluation of navigator programs found that while the minority of service users reported a resolution to their legal issues as a result of the program, the majority reported that information provided improved their understanding of laws (71%), legal options (65%), and their responsibilities (66%) (Department of Justice Canada, 2022e - MyLawBC Evaluation). The evaluation concluded that navigator programs in Canada are advancing the effectiveness of courts and increasing trust in, and the accessibility of the justice system (Department of Justice Canada, 2022e).
- Non-judicial dispute resolution processes such as negotiation, mediation, court-assisted dispute resolution, settlement conferences, family group conferencing, collaborative family law, or arbitration. In low-conflict separations, where both parties are open to a non-judicial settlement, these alternative dispute resolution processes can be faster, more confidential, and less adversarial than in-court settlements. At the same time, however, they can also be more expensive (Law Commission of Ontario, 2012; Manitoba Law Foundation 2021). Some interviewees reported that clients were interested in more non-judicial support.
- Indigenous processes and services. For Indigenous families, alternative dispute resolution processes that are based in cultural knowledge can further offer a culturally responsive approach to addressing family breakdown. Indeed, the 2013 federal Family Homes on Reserves and Matrimonial Interests or Rights Act opened an avenue for First Nations to develop their own laws and dispute resolution processes to govern on-reserve matrimonial real property (Friedland et al., 2015). Indigenous families in BC are advised that they can seek professional mediation from an Elder, community leader, band, or another Indigenous family (Legal Aid BC, 2021), or legal support from the Indigenous Community Legal Clinic.22 One interviewee reported that there is interest in seeing more Inuit Elders serving as advisors in the court system and family services.
Several sources noted the need to increase availability and awareness of alternative processes, particularly in Northern and rural communities, as well as to develop more Indigenous-specific legal services, such as extending the Indigenous Courtwork Program to provide more support to those involved family law matters. The TRC includes a call for “recognition and implementation of Aboriginal justice systems” (2015, art. 42), while the NIMMIWG called for “accessibility to meaningful and culturally appropriate justice practices” (2019, art. 5.11).
Alternative and/or Indigenous dispute resolution processes cannot, however, fully address the need for accessible and culturally safe family justice services for Indigenous people. As stated in UNDRIP, Indigenous Peoples “have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State” (United Nations, 2007, art. 5). It is imperative that Indigenous people be free to make an informed decision about the approach to justice that is most favourable for their family instead of being forced into a given process by necessity.
4.3 Cultural Sensitivity, Safety and Equity
There is a need for increased cultural safety, protection for survivors of IPV, and establishment of practices that better serve equity-deserving communities. Recommendations include:
- Cultural competency training. The Truth and Reconciliation Commission (TRC)’s Calls to Action (2015, art. 27, 28, and 57) and the National Inquiry into Missing and Murdered Indigenous Women & Girls [NIMMIWG]’s Calls for Justice (2019, art. 10.1) both underscore the need to establish mandatory cultural competency training for professionals in all public services, including the justice system. In keeping with the TRC and NIMMIWG’s calls for action and justice, such training should include the history and legacy of residential schools, UNDRIP, Treaties and Aboriginal rights in Canada, Indigenous law, Aboriginal-Crown relations, Indigenous cultures and histories, intercultural competency, conflict resolution, human rights, anti-racism, and distinctions-based training. Training would have to be embedded in law schools, but also offered in the form of “intensive, periodic training” for existing practitioners in a model that supports accountability through standards of practice (NIMMIWG, 2019, p. 193).
- Embedding Indigenous cultural support in courts, such as by funding a staff position for Indigenous courtroom liaison workers, as recommended by the NIMMIWG (2019, art. 10.1);
- Increased hours in Indigenous legal aid cases to support lawyers in understanding the cultural and social context, as well as more time in court to address social contexts (McCallum & Hrymak, 2022);
- A trauma-informed approach to family justice, which Rise Women’s Legal Centre’s analysis puts at the heart of decolonizing the family justice system to better serve Indigenous families (McCallum & Hrymak, 2022). Such an approach incorporates a thorough and compassionate understanding of the manifestation of trauma, abuse and crisis situations, and offers supports that address instead of exacerbating root causes (McCallum & Hrymak, 2022). Trauma-informed training is important for all legal staff, but can also be paired with outreach workers, counsellor or coordinator services for victims of violence.
- Aligning provincial and federal family laws to address gaps in equity for common-law partners, and Indigenous children (as discussed in Section 3.1.4)
- Embedding protections against IPV into legislation and the FJS (Koshan, 2021; Bates, 2021; Hrymak & Hawkins, 2021; Skinnider & Montgomery, 2017; NIMMIWG, 2019, art. 5.5), including:
- Broadening the definition of abuse across all family law legislation;
- Increasing screening for IPV in all family law cases; the use of Conduct Orders23 to limit abuse following separation;
- Specialized family courts or specialized judges;
- Appointing a single judge for each client to help identify patterns of litigation abuse;
- Setting up offsite remote witness facilities or protected persons spaces;
- Providing dedicated lawyers specializing in family violence to exclusively serve women experiencing IPV who would be protected from lawyer conflicts; and
- Increasing education about IPV and available supports for both legal staff and the general public, including around conduct orders, signs of abuse, litigation abuse, trauma-informed practices, and available supports.
These measures are in alignment with UNDRIP’s assertion of the rights of Indigenous women and children to full protection against violence (2017, art. 22).
4.4 Further Research Directions
While this report offers a significant picture of the multiple, compounding factors that can impact Indigenous peoples’ experiences within the FJS, there are several gaps in the available knowledge and data that could contribute to robust and effective solutions. Areas for further research or consultation could include:
- Maintaining a consolidated database of family legal aid eligibility guidelines and coverage provisions across Canada. Birnbaum & Bala (2019) offer the most recent overview of family legal aid plans across the country, however the data points presented varies between provinces and does not provide detailed information about financial eligibility criteria. Bertrand et al. (2002) provides a much more detailed inventory of service delivery, coverage provisions, financial eligibility and issues faced by family legal aid plans in each province and territory, however it is significantly outdated. An updated inventory, ideally including regional variations within provinces and territories, could provide a more current picture of gaps or inequities in terms of coverage and financial eligibility and accessibility.
- Conducting an intersectional impact analysis on family law, specifically comparing provisions in provincial and territorial legislation with the federal Divorce Act. An intersectional analysis would consider the needs of Indigenous Peoples, as well as common-law partnerships, women, 2SLGBTQQIA people, victims of violence, people in rural and remote communities and other equity-seeking communities. The analysis would articulate amendments needed to ensure equal treatment for all Canadians, as well as alignments with the UNDRIP (McCallum & Hrymak, 2022, p. 20).
- Developing an inventory of alternative justice programs, including Indigenous justice programs, mapped by geographic region. Such an inventory could support an understanding of gaps in services and could also be made public to support families in locating relevant services.
- A comprehensive study on Indigenous laws and perspectives on marriage, families and the dissolution of families, and the impact of colonialism on family matters. Such a study would need to take a distinctions-based approach to acknowledge the unique cultures and histories of different First Nations, as well as Métis and Inuit peoples. Findings could enrich cultural competency training for legal professionals to better understand the perspectives and realities of Indigenous families and provide more culturally responsive services. This is in alignment with the TRC’s call for “the federal government, in collaboration with Aboriginal organizations, to fund the establishment of Indigenous law institutes for the development, use, and understanding of Indigenous laws and access to justice in accordance with the unique cultures of Aboriginal peoples in Canada” (2015, art. 50).
- Further consultation with First Nations, Inuit, and Métis families who are experiencing or have experienced the dissolution of their relationships, as well as frontline legal staff supporting Indigenous clients in family law. Such a consultation would benefit from a trauma-informed and multi-pronged approach, including both individual interviews and larger group dialogues in consideration of both the sensitive nature of the topic, as well as the need for greater knowledge sharing. In alignment with UNDRIP, the NIMMIWG, the TRC and international principles and standards, it is important that the FJS remain accountable and responsive to the recommendations emerging from such consultations.
- Collecting and publishing data on family violence victimization of Indigenous people (as stated in the NIMMWG’s Calls for Justice, art. 9 and 55).
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