INTRODUCTION
Access to family law justice has been identified as a crisis in the Canadian legal system for
decades.1 Over the years, prominent family law scholars have published numerous reports
and articles outlining recommendations to make the justice system more accessible,
responsive and user-focused.2 Among the reports was the 2013 final report of the national
Action Committee on Access to Justice in Civil and Family Matters (“Action Committee”),
which provided realistic and achievable goals for improving access to justice3 and a call to
action for “bold innovation” and a “fundamental overhaul” of the
1 Trevor C.W. Farrow, “What is Access to Justice?” (2014) 51:3 OsgoodeHall LJ 957 at 963, 965,
972; See also, Michael Trebilcock, Anthony Duggan & Lorne Sossin, Middle Income Access to Justice
(Toronto: University of Toronto Press, 2012) [Trebilcock, Duggan & Sossin] at 271; Beverley McLachlin,
“As Courts Reopen, Let’s Focus On Creating Equitable Access To Justice For All”, Globe and Mail (10 July
2020), online: < https://www.theglobeandmail.com/opinion/article-as-courts-reopen-lets-focus-on-
creatingequitable-access-to-justice/>.
2 See especially Action Committee on Access to Justice in Civil and Family Matters, “Access to Civil
& Family Justice: A Roadmap for Change” (October 2013), online (pdf): Canadian Forum on Civil Justice
<www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf> [Action Committee, A
Roadmap for Change]; Ontario, “Putting Justice Within Reach: The Foundation for User-Focused Justice in
Ontario” (29 November 2017), online (pdf): <www.ontario.ca/page/putting-justice-within-reach-plan-
userfocused-justice-ontario> [Ontario, Putting Justice Within Reach]; The Canadian Bar Association,
“Reaching Equal Justice Report, An Invitation To Envision and Act” (November 2013), online (pdf):
<lawsocietyontario.azureedge.net/media/lso/media/legacy/pdf/c/cba_equal_justice.pdf> [CBA, Reaching
Equal Justice Report]; Law Commission of Ontario, “Increasing Access to Family Justice Through
Comprehensive Entry Points and Inclusivity, Final Report” (February 2013), online (pdf):
<www.lcocdo.org/wp-content/uploads/2013/06/family-law-reform-final-report.pdf> [Law Commission of
Ontario]; The Action Group on Access to Justice, “Public Perceptions of Access to Justice in Ontario” (25
October
2016) online (pdf): The Access to Justice Research Network <theactiongroup.ca/wp-
content/uploads/2015/08/Abacus_TAG_Release_Oct14.pdf> [The Action Group on Access to Justice]; Dr.
Barbara Landau et al., “Creating a Family Law Process that Works: Final Report and Recommendations from
the Home Court Advantage Summit” (Paper delivered at Home Court Advantage Summit, 22-23 November
2009) [unpublished] [Landau]; Dr. Julie Macfarlane, “The National Self-Represented Litigants Project:
Identifying and Meeting the Needs of Self-Represented Litigants” (May 2013), online (pdf):
Representing Yourself Canada <representingyourselfcanada.com/wp-
content/uploads/2016/09/srlreportfinal.pdf> [Macfarlane, The National Self-Represented Litigants Project];
Peter Salem & Michael Saini, "A Survey of Beliefs and Priorities about Access to Justice of Family Law: The
Search for a Multidisciplinary Perspective" (2017) 55:1 Fam Ct Rev 120 [Salem & Saini]; Jane Bailey,
Jacquelyn Burkell & Graham Reynolds, "Access to Justice for All: Towards an Expansive Vision of Justice
and Technology" (2013) 31:2 Windsor YB Access Just 181 [Bailey, Burkell & Reynolds]; Michael Saini,
Rachel Birnbaum & Nicholas Bala, "Access to Justice in Ontario's Family Courts: The Parents' Perspective"
(2016) 37 Windsor Rev Legal Soc issues 1 [Saini, Birnbaum & Bala]; Thomas A. Cromwell, “Access to
Justice: Towards a Collaborative and Strategic Approach” (2012) 63 UNBLJ 38 [Cromwell]. 3 Acton
Committee, A Roadmap for Change, supra note 2.
Canadian justice system.
1
Following the release of the Action Committee's final report,
significant reforms to the Ontario family justice system began. However, it was not enough
as the crisis continued, with those seeking access to the family justice system still finding
it inaccessible, expensive and difficult to navigate.
2
The COVID-19 pandemic then brought further attention to the continued inaccessibility of
the Ontario family justice system. On March 11, 2020, the World Health Organization
officially declared COVID-19 as a global pandemic.
3
Four days later, on March 15, 2020,
Chief Justice Morawetz announced the suspension of all regular court operations across
Ontario effective March 17, 2020.
4
During a period of abrupt social distancing measures,
mandatory working from home and school closures, those in Ontario's family justice
system were forced to confront the reality that the current system was not fit for life in the
digital age.
5
Due to pandemic-related restrictions, the Ontario family justice system was
forced to make significant and necessary changes, particularly technological
advancements, in order to remain accessible. This paper will examine whether the recent
1
Action Committee on Access to Justice in Civil and Family Matters, “Meaningful Change for Family
Justice: Beyond Wise Words, Final Report of the Family Justice Working Group” (April 2013) online
(pdf): Canadian Forum on Civil Justice <www.cfcj-
fcjc.org/sites/default/files/docs/2013/Report%20of%20the%20Family%20Law%20WG%20Meaningful%2
0Change%20April%202013.pdf> [Action Committee, Beyond Wise Words] at 8.
2
See eg. Law Commission of Ontario, supra note 2 at foreword, 26, 73; Saini, Birnbaum & Bala, supra note
2; Landau, supra note 2 at 7; Macfarlane, The National Self-Represented Litigants Project, supra note 2 at
40-41.
3
Dr. Tedros Adhanom Ghebreyesus, “WHO Director-General's opening remarks at the media briefing on
COVID-19 - 11 March 2020” (11 March 2020), online: World Health Organization
</www.who.int/director-general/speeches/detail/who-director-general-s-opening-remarks-at-the-
mediabriefing-on-covid-19---11-march-2020.
4
Chief Justice Geoffrey B. Morawetz, “Notice to the Profession, the Public and the Media Regarding Civil
and Family Proceedings” (15 March 2020), online: Ontario Superior Court of Justice
</www.ontariocourts.ca/scj/notices-and-orders-covid-19/notices-no-longer-in-effect/covid-19-
suspensionfam/> [Morawetz, Notice to the Profession].
5
Benjamin P Cooper, "Preliminary Thoughts on Access to Justice in the Age of COVID-19" (2020) 56:2
Gonz L Rev 227 at 234.
changes to Ontario's family justice system, including those implemented in response to the
COVID-19 pandemic, have made the system more accessible than ever before.
This paper proceeds as follows. Part I sets out the definition of access to justice and
describes what an accessible family justice system looks like. Part II considers how the
Ontario government has contributed to the access to justice crisis and provides specific
examples as to why Ontario’s family justice system remains inaccessible. Part III discusses
the key recommendations for reform that have been made to make the Ontario family
justice system more accessible, including the public’s access to legal information, access
to alternative dispute resolution services, and access to the courts. Lastly, Part IV provides
a discussion on where the current Ontario family justice system is, and determines whether
the recent transformation of the system has been the “fundamental” and “bold” change
needed to end the access to justice crisis in Ontario.
I. WHAT IS AN ACCESSIBLE FAMILY JUSTICE SYSTEM?
Access to justice has been a topic of debate in Canada since the 1970s.
6
Scholars have
proposed several theories for access to justice, starting with the idea that it simply refers to
gaining access to the formal court system, including judges and lawyers.
7
Over the last few
decades, there has been an expanded vision of access to justice beyond the courtroom, to
include a system that provides the public with information, resources and services to help
them avoid manage and resolve family law disputes.
8
Trevor Farrow recently labeled this
as “meaningful access to justice,”
9
which takes into account not only how accessible the
6
Cromwell, supra note 2 at 39.
7
See, e.g. Salem & Saini, supra note 2 at 121; Bailey, Burkell & Reynolds, supra note 2 at 182.
8
See Action Committee, Beyond Wise Words, supra note 4 at 1-2, 10; Cromwell, supra note 2 at 38-39;
Landau, supra note 2 at 8; Salem & Saini, supra note 2 at 121, 123; Orna Rabinovih-Einy & Ethan Katsh,
“Access to Digital Justice: Fair and Efficient Processes for the Modern Age” (2017) 18 Cardozo J. Conflict
Resol 637 [Rabinovih-Einy & Katsh] at 637-638; Action Committee on Access to Justice in Civil and Family
Matters, “Responding Early, Responding Well: Access to Justice through the Early Resolution Services
Sector” (12 February 2013), online (pdf): Canadian Forum on Civil Justice
<www.cfcjfcjc.org/sites/default/files/docs/2013/Report%20of%20the%20Prevention%2C%20Triage%20an
d%20Refe rral%20WG%20.pdf > [Action Committee, Responding Early Responding Well] at 3.
9
Trevor Farrow & Lesley Jacobs, The Justice Crisis: The Cost and Value of Accessing Law (UBC Press 2020)
[Farrow & Jacobs] at 7.
court system is, but also how accessible the path is for addressing and resolving the public’s
legal disputes.
10
Most importantly, the access to justice debate has highlighted the
realization that, in order to systematically change the system in a way that makes it more
accessible, the change must consider the system’s users rather than the system’s
providers.14 This realization allows for changes to be made that better meet the needs of the
public for whom the justice system was designed for in the first place.15
Given the expanded vision of access to justice, an accessible family justice system is one
that assists the public with all aspects of their family dispute, from the initial stages of
deciding whether to separate to the final stages of settlement or court order. It also provides
the public with accurate and reliable legal knowledge so that they can make informed
decisions throughout their dispute. That legal knowledge can come in different forms, such
as free, online legal information, assistance from court staff, or legal advice from family
law practitioners. An accessible family justice system also services the unique needs of
each and every family by providing them with different ways in which their family dispute
can be addressed and resolved. The needs of Ontarians are not only legal, but can also
include financial, emotional and social, which makes family law particularly distinctive
from other areas of the law. An accessible family justice system also considers the
multidisciplinary nature of family law, as other areas of law, such as landlord and tenant
and tax law, which are frequently integrated in family disputes. Lastly, an accessible family
justice system makes navigating the court system simple and straightforward. This includes
the entire court system, from the court forms required to initiate a court action, to the stages
in each family law case and the court rules. The accessible justice system just described
does not resemble the current Ontario family justice system.
14 Action Committee on Access to Justice in Civil and Family Matters, “Report of the Access to Legal
Services Working Group” (May 2012), online (pdf): Canadian Forum on Civil Justice
<www.cfcjfcjc.org/sites/default/files/docs/2013/Report%20of%20the%20Access%20to%20Legal%20Se
10
Farrow & Jacobs, supra note 12 at 7.
rvices%20Wo rking%20Group.pdf> [Action Committee, Legal Services Report] at 3; Landau, supra note
2 at 8.
15 Action Committee on Access to Justice in Civil and Family Matters, “Report of the Court Processes
Simplification Working Group of the Action Committee on Access to Justice in Civil and Family Matters”
(May 2012), online (pdf): Canadian Forum on Civil Justice < https://www.cfcj-
fcjc.org/sites/default/files/docs/2012/Report%20of%20the%20Court%20Processes%20Simplification%20
Working%20Group.pdf> [Action, Committee, Court Processes Simplification Report] at 21.
II. ONTARIO’S FAMILY JUSTICE SYSTEM CRISIS
Ontario’s family justice system has been in a state of crisis for more than a decade.
11
Some
have attributed the crisis to the Ontario government simply not providing the public with
the services needed to effectively resolve their legal disputes.
12
The legal system’s
escalating cost, significant delays, inconsistencies, complexity and inability to address
issues of domestic violence are just a few of the factors contributing to the growing
dissatisfaction among users of Ontario’s family justice system.
13
This section considers
how the Ontario government has contributed to the access to justice crisis and provides
specific examples as to why Ontario’s family justice system remains inaccessible.
One of the most significant barriers to accessing family justice is the cost of legal services.
14
Low-income individuals are not the only ones unable to afford proper legal services. There
is now a greater awareness that middle class individuals are unable to obtain legal services
because they cannot afford a lawyer and also do not qualify for legal aid.
15
Contributing to
the cost of the family court system is the number of court appearances Ontarians must
attend prior to their matter going to trial.
16
Parties must attend a case conference, settlement
conference and trial management conference before trial. They may also have to attend
motions if temporary orders are required, as well as first appearances or “speak to dates”
11
See e.g. Saini, Birnbaum & Bala, supra note 2 at 17-20; Law Commission of Ontario, supra note 2 at 5.
12
Cromwell, supra note 2 at 40.
13
Landau, supra note 2 at 8.
14
Saini, Birnbaum & Bala, supra note 2 at 18; Ab Currie, “Let’s Pick Up Where we Left Off 25 Years Ago
to Expand on Access to Civil Justice in Canada” (Toronto: November 2020) online (pdf): Canadian Forum
on Civil Justice <cfcj-fcjc.org/wp-content/uploads/Lets-Pick-Up-Where-We-Left-Off-25-Years-Ago-
ToExpand-Access-To-Civil-Justice-in-Canada-Ab-Currie.pdf> at 5.
15
See Trebilcock, Duggan & Sossin, supra note 1; See also Action Committee, Legal Services Report, supra
note 14 at 3.
16
Saini, Birnbaum & Bala, supra note 2 at 17.
to schedule their matter. Where parties are close to settlement, they may also be required
to attend a second settlement conference or trial management conference. By adding
another settlement opportunity with the judge’s assistance, the court system is further
delayed and costs are increased due to additional preparation and court appearances. As a
result of these further court appearances, the time it takes to complete a family court case
is increasing. In addition to these factors, the hourly rates of lawyers have continued to rise
over the years, which has led to an increase in the cost of family law cases.
17
The high cost of legal services occurs not only in the court system, but also when using
alternative dispute resolution (“ADR”) services like mediation, arbitration or collaborative
family law. For example, while arbitration can lead to a final result faster than a trial due
to the current delays in the court system, the arbitration process is still very similar to a
formal trial, which typically includes questioning of the parties at a local court reporters
office, hiring financial experts, as well as the cost of the arbitrator. The use of collaborative
family law includes hiring lawyers for each party, a financial expert, as well as a child-
psychologist if parenting issues are in dispute, all of whom have their own hourly rates. As
a result, when using an ADR service, more professionals are usually required, resulting in
higher legal fees for the parties.
The number of forms that must be completed prior to commencing a court action is another
factor contributing to the inaccessibility of the Ontario family court system. Currently, there
are seven forms that need to be filed in the Ontario Superior Court of Justice if new claims
are being made for parenting, property and support.
18
If a settlement agreement or final
court order needs to be amended and the parties do not agree on the amendments, there are
different forms that need to be completed.
19
The different forms have contributed to the
17
Action Committee, A Roadmap for Change, supra note 2, at 4.
18
Continuing Record, Form 8: Application, Form 13: Financial Statement (Support Claims) or Form 13.1:
Financial Statement (Property and Support Claims), Form 13A: Certificate of Financial Disclosure, Form
35.1 Affidavit (Decision-Making Responsibility, Parenting Time, Contact), Support Deduction Order,
Support Deduction Order Information Form.
19
Form 15: Motion to Change, Form 15A: Change Information Form. If parenting terms need to be amended,
need to also file Form 35.1 Affidavit (Decision-Making Responsibility, Parenting Time, Contact). If child
and/or spousal support terms need to be amended, a party also needs to file Form 13: Financial Statement
confusion of the court system as, for example, even some family law practitioners have
difficulty in understanding whether they need to commence an application or motion to
change when a client is looking to change a separation agreement. As a result, the family
justice system continues to be too complicated and difficult to understand for the public.
20
Based on the expensive and time-consuming nature of family litigation, there has been an
increase in the amount of people who choose to represent themselves in court, also known
as a “self-represented litigant” (“SRL”). In Canada, approximately 50% of people attempt
to resolve their legal dispute on their own based on the continued inaccessibility of the
justice system.
21
The issue with SRL’s is that they have difficulty navigating the family
court system, often need more court resources, and hold unrealistic expectations of what
they may accomplish due to their lack of legal knowledge.
22
A recent study found that 91%
of Ontario family law practitioners felt that costs increased for their client’s when the other
spouse was self-represented.
23
In response to the rise in SRL’s, there have been
recommendations to expand and modernize the way in which legal services are provided,
such as the introduction of unbundled legal services, or the controversial recommendation
of permitting paralegals to assist families with certain family law matters.
24
In light of increasing costs, complexity and delays within the family court system, a greater
need has emerged for more affordable alternatives to courtroom litigation to assist the
public in resolving family law disputes. However, aside from the costs associated with
participating in an ADR service, another issue is that alternatives to court usually involve
(Support Claims), Form 13A: Certificate of Financial Disclosure, Support Deduction Order and Support
Deduction Order Information Form.
20
Action Committee, A Roadmap for Change, supra note 2 at 8.
21
Rachel Birnbaum, Nicholas Bala & Lorne Bertrand, "The Rise of Self-Representation in Canada's Family
Courts: The Complex Picture Revealed in Surveys of Judges, Lawyers and Litigants " (2012) 91:1 Can B
Rev 67 at 71; See also Ibid at 4.
22
Government of Canada, Department of Justice, “JustFacts, Self-Represented Litigants in Family Law”
(June 2016), online: <https://www.justice.gc.ca/eng/rp-pr/fl-lf/divorce/jf-pf/srl-pnr.html>.
23
Justice Annemarie E. Bonkalo, “Family Legal Services Review” (31 December 2016), online: Ministry of
the Attorney General
<https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/family_legal_services_review/>.
24
Ibid.
individuals who are settlement oriented and have some positive relationship with the other
spouse.
25
As a result, there are numerous cases, such as those involving family violence or
parental alienation, where the current ADR services available simply cannot assist families
the way that judicial intervention can. There is therefore a clear gap in Ontario’s family
justice system, as those with ample financial means have better access to the system than
those with limited or no economic means.
26
III. HOW TO MAKE THE ONTARIO FAMILY JUSTICE SYSTEM MORE
ACCESSIBLE
For Ontario to have an accessible family justice system, reform to the system must address
and remove, or at the very least minimize, the numerous factors that contribute to the
frustration among its users. Reports and articles on access to family justice reform made
over the past decade identify three main suggestions for change: (1) the public’s access to
reliable, accurate, and easy-to-understand legal information; (2) the public’s access to
alternative dispute resolution services; and (3) simplifying the public’s access to the family
court system. This section will go over each of these three suggestions in detail, discussing
previous reform proposals and identifying changes made to the Ontario family justice
system in response.
A. THE PUBLIC’S ACCESS TO LEGAL INFORMATION
When people have access to reliable, accurate, and easy-to-understand legal information,
the family justice system is more accessible. In 2013, the Law Commission of Ontario
(“LCO”) appropriately stated,
“[f]or the law to be effective for those who are subject to it, access to knowledge
about the law and capacity to negotiate the law, with or without assistance, is as
25
Noel Semple & Nicholas Bala, “Reforming the Family Justice System: An Evidence-Based Approach”
(2 October 2013) online (pdf):
<papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2366934_code686285.pdf?abstractid=2366934&mirid=1>
[Semple & Bala] at 8.
26
Salem & Saini, supra note 2 at 121.
important as “the law” itself. A “good” statute has limited value if it is difficult to
understand and accessing the rights it provides formidable.”
27
Knowing and exercising one’s rights empowers the public by allowing them to better
understand what rights to pursue, what rights to avoid, and to feel more in control over the
process and outcomes.
28
Additionally, having accurate and reliable legal information can
allow the public to undertake a risk assessment of their claims and weigh what is most
important to them against the potential financial repercussions of pursuing a claim that
might not be successful.
Access to reliable and accurate legal information early in a dispute can also increase the
use of ADR services. The LCO refers to this as "front end loading the system,"
29
as it allows
people to identify the nature of their legal problem early on and then choose the best method
for them to resolve their dispute, such as dealing with it themselves, filing a court action,
or engaging in an ADR service like mediation.
30
By having more information about the
family law system at the beginning of a dispute, people can begin to realize that going to
court is only one of the options available. If more people participate in ADR services, the
court system can be used only for urgent matters, highconflict situations, or precedent-
setting cases.
31
Access to easy-to-understand legal information is especially important for those who
cannot afford a lawyer.
32
SRL’s rely on freely available legal information to educate
27
Law Commission of Ontario, supra note 2 at 5-6.
28
Action Committee, Legal Services Report, supra note 14 at 5.
29
Law Commission of Ontario, supra note 2 at 28.
30
See e.g. Nicholas Bala, “Reforming Family Dispute Resolution in Ontario: Systemic Change and Culture
Shifts” in Trebilcock, Duggan & Sossin, supra note 1 [Bala] at 279; Justice George Czutrin, “Some
Reflections on Family Dispute Resolution in Ontario” in Trebilcock, Duggan & Sossin, supra note 1
[Czutrin] at 326; Cromwell, supra note 2 at 45; Action Committee, Beyond Wise Words, supra note 4 at 7
and 41; Law Commission of Ontario, supra note 2 at 1, 64, 71; Action Committee, Responding Early
Responding Well, supra note 11 at 3; Landau, supra note 2 at 9.
31
Law Commission of Ontario, supra note 2 at 28.
32
Bala, supra note 35 at 291.
themselves about their legal rights and processes. If the legal information is difficult to
understand, SRL’s may remain unfamiliar about the law and the procedures of the legal
system, which may contribute to delays within the family system. Making legal information
simple to comprehend and freely available to the public can help reduce delays, minimize
costs and promote access to justice.
Following the rise in SLR’s, scholars began to recognize that the manner in which legal
information was distributed to the public was contributing to the access to justice
crisis.
33
Many felt that the information available was too complicated to understand because
it was geared towards the legal profession rather than the general public.
34
Others also felt
that there was too much legal information available, particularly as a result of the internet,
making it difficult to navigate and overwhelming for many to know what information was
reliable.
35
Due to these challenges, people with family law issues were more likely to seek
legal advice from friends and family members.
36
According to the Action Group on Access
to Justice, 32% of Ontarians sought legal advice from family members and friends in 2016,
compared to 26% who sought advice from online legal resources.
37
As a result, the general
public may be given incorrect legal information, which can lead to unmanageable
expectations, increased costs and delays in resolution.
33
See e.g. Czutrin, supra note 35 at 320-321; Cromwell, supra note 2 at 39; Action Committee, Beyond Wise
Words, supra note 4 at 41–44; Saini, Birnbaum & Bala, supra note 2 at 19-20; Law Commission of Ontario,
supra note 2 at 18-19; Action Committee, Legal Services Report, supra note 14 at 8.
34
Action Committee, Beyond Wise Words, supra note 4 at 10; Macfarlane, The National Self-Represented
Litigants Project, supra note 2 at 64-65; Saini, Birnbaum & Bala, supra note 2 at 19-20; Law Commission
of Ontario, supra note 2 at 19.
35
Action Committee, A Roadmap for Change, supra note 2 at 13; Law Commission of Ontario, supra note 2
at 18, 59.
36
Law Commission of Ontario, supra note 2 at 18.
37
The Action Group on Access to Justice, supra note 2 at 3.
1. Suggestions for Reform to Make Legal Information More Accessible to the Public
In response to these challenges, one common suggestion for reform among key scholars
was for a single portal of legal information to be made available to the public.
38
This would
enable a centralized access point for reliable legal information to be provided to those with
legal issues. Many have advocated for coordination and collaboration among key
stakeholders, such as government, law foundations, law societies and legal aid plans in
order to be successful in providing timely and accurate information through a central entry
point.
39
The LCO also recognized that an alliance among these stakeholders could help
address the diversity of all Ontarians because they have the experience and knowledge to
contribute to the development of unified legal information.
40
Furthermore, by broadening
the scope of legal information available to the public, families will be able to connect with
the legal and non-legal services that are best suited to their specific needs.
41
2. Recent Advances in Providing Better Legal Information to the Public
In reply to the reform suggestions, Ontario made two distinct changes in terms of providing
legal information to assist individuals in resolving family law disputes. First, the provincial
courthouses responded through the availability of the Mandatory Information Program
(“MIP”)
42
and the Family Law Information Centre (“FLIC”)
43
in each courthouse across
Ontario. The MIP is a mandatory class for all parties who are involved in a family court
case where they learn about the potential effects of separation and divorce on children,
alternatives to going to court, the litigation process, as well as other local services available
38
Action Committee, Legal Services Report, supra note 14 at 6; Law Commission of Ontario, supra note 2
at 19; Macfarlane, The National Self-Represented Litigants Project, supra note 2 at 116.
39
Action Committee, Legal Services Report, supra note 14 at 5-6; Action Committee, Court Processes
Simplification Report, supra note 15 at 11; Law Commission of Ontario, supra note 2 at 60; Action
Committee, A Roadmap for Change, supra note 2 at 13.
40
Law Commission of Ontario, supra note 5 at 60.
41
Salem & Saini, supra note 2 at 133.
42
See Family Law Rules, O.Reg 114/99 [Family Law Rules], r 8.1; See also Farrow & Jacobs, supra note 12
at 192.
43
Ontario, “Family Justice Services” (last modified 12 August 2021), online:
<www.ontario.ca/page/family-justice-services#section-2> [Ontario, Family Justice Services].
to families.
44
However, the MIP can only be attended by those who are a part of a family
litigation file and therefore not available to those seeking legal advice and information at
the outset of their dispute. On the other hand, the FLIC can be attended by any member of
the public where they can obtain the same information available at the MIP program.
45
Second, in response to the recommendation for a single entry portal for accessing legal
information, Community Legal Education Ontario (“CLEO”) has expanded and
modernized the Steps to Justice website.
46
This was done in collaboration with a wide
range of key stakeholders
47
and provides the public with legal information on common
legal problems, guided pathways for different areas of law including family law, and assists
with the drafting of court forms.
48
It also offers the public information that is easily
accessible, accurate and simple to understand for those seeking assistance in understanding
their family law problem.
B. THE PUBLIC’S ACCESS TO ALTERNATIVE DISPUTE RESOLUTION SERVICES
Not every family law dispute requires court intervention. In Ontario, there are a variety of
ADR services available to assist families in resolving their family law matter without going
to court. Examples of these are negotiation with or without a lawyer, mediation, private
arbitration and collaborative law. The availability of ADR services to the public promotes
access to justice by providing families with alternatives to managing and resolving their
dispute without the need to enter a courtroom.
Rather than going to court, ADR services give families more control over the process and
outcome of their dispute and can be tailored to the individual needs of both parties. For
44
Ibid.
45
Ontario, Family Justice Services, supra note 48.
46
CLEO Connect, “About CLEO Connect” (last visited 21 August 2021), online:
<https://cleoconnect.ca/what-we-do/>.
47
This includes the Ministry of the Attorney General, Legal Aid Ontario, community legal clinics, the Law
Society of Ontario, the Superior Court of Justice, the Ontario Court of Justice, The Action Group on Access
to Justice.
48
“Steps to Justice” (last visited 21 August 2021), online: <https://stepstojustice.ca/>.
example, ADR services can allow for more breaks throughout the day than in court and can
be scheduled around the availability of the parties. It also allows parties to select a neutral
intermediary with expertise in the specific family issues in dispute, as opposed to having
no choice in the judge if they go to court. Another important aspect of using an ADR service
is the ability to come up with a solution that best meets the needs of everyone involved,
especially the children. Individuals who use an ADR service can be more creative and have
greater input in the final settlement rather than receiving a final order from a judge after a
lengthy trial. The Action Committee believes that ADR services can help make the family
justice system more affordable, fair, and efficient.
49
This can be accomplished by refocusing
the families' attention on their needs and interests rather than the rigid rules and positions
commonly found in the courtroom.
50
1. Suggestions for Improvements to Alternative Dispute Resolution Services
Raising public awareness of the various ADR services available can make the family justice
system more accessible. It was found that the majority of the public is unaware of ADR
services available that can assist them with their family law dispute. According to Dr. Julie
Macfarlane’s National Self-Represented Litigants Project, “[a] significant number of SRL’s
say that they were never offered mediation, and/or do not know what it is.”
51
Dr. Macfarlane
recognized that “[t]his is a clear gap that needs to be urgently addressed.”
52
One way to address this concern is through the suggestion of triaging families at the outset
of their family dispute with the assistance of Case Assessment Coordinators (“CAC”).
53
This approach is similar to the LCO’s recommendation of “front end loading the system,”
in which triaging can assist the public by providing information early in their dispute about
49
Action Committee, Court Processes Simplification Report, supra note 15 at 13.
50
Rabinovih-Einy & Katsh, supra note 11 at 641.
51
Macfarlane, The National Self-Represented Litigants Project, supra note 2 at 12.
52
Ibid.
53
Landau, supra note 2 at 7, Bala, supra note 35 at 279; Czutrin, supra note 35 at 326; Cromwell, supra note
2 at 45; Action Committee, Beyond Wise Words, supra note 4 at 7, 41; Law Commission of Ontario, supra
note 2 at 64, 71.
the different pathways available to best suit their needs, including an ADR service. Triaging
can also assist in determining how a case should be handled, particularly ones which may
involve power imbalances or family violence.
Aside from receiving legal information online, people can also obtain legal information
from lawyers. However, many lawyers continue to be focused on bringing matters to court
rather than making use of an ADR service. The Action Committee recognized that the
traditional role of the “zealous advocate” is too limited for the varying demands of family
law practice.
54
As a result, many scholars have suggested culture change as one of the ways
to enhance access to justice, proposing that family professionals should move away from a
court-centered perspective to a more collaborative approach.
55
The Action Committee
declared “[t]he motto might be: court if necessary, but not necessarily court.”
56
Dr.
Macfarlane recently labelled this change in perspective as the “new lawyer,”
57
which
considers an alternative model of lawyering practice but uses the same expertise and
understanding of traditional legal practice.
58
The “new lawyer” is evolved in a way that
advances the best possible result for the client through settlement, using amicable dialogue,
encouragement, and relationship management.
59
Another way to improve access to family justice through the use of ADR services is to
incorporate technology. This can likely reduce costs to the public while potentially serving
a larger number of people. It has been suggested by many that ADR services be expanded
to include Online Dispute Resolution (“ODR”) to achieve this goal.
60
ODR refers to a
54
Action Committee, Beyond Wise Words, supra note 4 at 30.
55
See e.g. Bala, supra note 35 at 274, 279, 313-314; Action Committee, Beyond Wise Words, supra note 4
at 3, 24- 25; See also, Hryniak v. Mauldin, 2014 SCC 7 at paras 2, 28, 32.
56
Action Committee, A Roadmap for Change, supra note 2 at 11.
57
Julie Macfarlane, “The Evolution of the New Lawyer: How Lawyers are Reshaping the Practice of Law”
(2008) 1 J Disp Resol 61.
58
Ibid at 63-64.
59
Ibid.
60
Ontario, Putting Justice Within Reach, supra note 2 at 14; CBA, Reaching Equal Justice, supra note 2 at
422-23; Action Committee, A Roadmap for Change, supra note 2 at 16; The Canadian Bar Association, “No
variety of ADR services that use technology to communicate and resolve a dispute virtually
without the requirement of the parties being physically present together.
61
In 2013, the
Action Committee recognized the importance of ODR in the court system, acknowledging
that it may open up a number of opportunities for easily accessible and low-cost dispute
resolution.
62
They recommended that ODR services should also be used where suitable and
practicable.
63
The Ontario government also discussed the use of ODR in its 2016 report,
recommending that this type of technology would ensure that the justice system is designed
in a way that is relevant to Ontarians for years to come.
64
In 2019, the Law Society of
Ontario Technology Taskforce recommended the use of ODR platforms as it can provide
the public with an array of legal services including predicted outcomes of their legal matter
to assist in facilitating mediation.
65
When technology such as ODR platforms are properly
used, it can substantially improve access to justice by reducing barriers of cost, time and
delay in the process.
66
2. Recent Modifications to Ontario’s Alternative Dispute Resolution Services
In response to the call for more people to take advantage of ADR services, the federal
government enacted legislation requiring legal professionals to advise their clients about
ADR services available to them. As of March 1, 2021, amendments to the federal Divorce
Turning Back: CBA Task Force Report on Justice Issues Arising from COVID-19” (February 2021), online
(pdf):
<www.cba.org/CBAMediaLibrary/cba_na/PDFs/Publications%20And%20Resources/2021/CBATaskForce
.pdf> [CBA, No Turning Back] at 8.
61
Government of Canada, Department of Justice, “Dispute Resolution Reference Guide: Online Dispute
Resolution” (August 2012), online : <www.justice.gc.ca/eng/rp-pr/csj-sjc/dprs-
sprd/res/drrgmrrc/10.html#i>.
62
Action Committee, Legal Services Report, supra note 14 at 14-15.
63
Action Committee, A Roadmap for Change, supra note 2 at 6.
64
Ontario, Putting Justice Within Reach, supra note 2 at 14.
65
Will Morrison, “Technology Task Force, Update Report” (November 2019), online (pdf): Law Society of
Ontario
<lawsocietyontario.azureedge.net/media/lso/media/about/convocation/2019/technologytaskforcereport-
en.pdf> [Morrison] at 13.
66
Michael J Wolf, "Collaborative Technology Improves Access to Justice" (2012) 15:3 NYU J Legis & Pub
Pol'y 759 [Wolf] at 776.
Act,
67
provincial Family Law Act
68
and Children’s Law Reform Act
69
came into effect where
family legal advisers are now required to advise their clients about the variety of ADR
services available, referred to in the legislation as “family dispute resolution processes.”
Family legal advisers are also required to encourage clients to attempt to resolve their
matters outside of court, unless it would clearly not be appropriate to do so.
70
To assist those who cannot afford to use ADR services, the Ontario Ministry of the Attorney
General has provided free family mediation services at all of Ontario’s courthouses.
71
However, this service is only available for parties who have already filed a court action,
and only for those who have a court appearance that day.
72
Off-site family mediation
services are also available for a fee based on the income of the parties and the number of
children.
73
Additionally, effective May 14, 2021, the Superior Court of Justice developed a Binding
Judicial Dispute Resolution pilot project in the Simcoe, Muskoka and Cornwall Superior
Court of Justice, Family Court Branch as well as the Superior Courts in the Northwest and
Northeast regions.
74
This project was designed to offer family law litigants with an easier
approach to reaching a final resolution, as well as assist in addressing significant backlogs
in family cases caused by COVID-19.
75
While this project requires parties to commence a
67
Divorce Act, RSC 1985, c 3 (2nd Supp) [Divorce Act].
68
Family Law Act, R.S.O. 1990, c. F.3 [Family Law Act].
69
Children’s Law Reform Act, RSO 1990, c C.12 [Children’s Law Reform Act].
70
Children’s Law Reform Act, supra note 74 at s 33.2(2); Divorce Act, supra note 72 at s 7.7(2); Family Law
Act, supra note 73 at s 47.3(2); See also, Moving Ontario Family Law Forward Act, 2020, S.O. 2020, c. 25.
71
Ontario, Family Justice Services, supra note 48.
72
Ibid; Ontario Court of Justice, “COVID-19: Scheduling of Family Matters in the Ontario Court of Justice
(last modified 21 April 2021), online: <www.ontariocourts.ca/ocj/covid-19/archives/covid-19-schedulingof-
family-matters-in-the-ontario-court-of-justice-april-8-2021-revised-april-21-2021/>.
73
Ontario, Family Justice Services, supra note 48.
74
Chief Justice Geoffrey Morawetz, “Practice Advisory Concerning the Superior Court of Justice’s Binding
Judicial Dispute Resolution Pilot Projects” (10 May 2021), online: Ontario Superior Court of Justice
<www.ontariocourts.ca/scj/practice/binding-judicial-dispute-resolution-pilot/> [Morawetz, Binding Judicial
Dispute Resolution Pilot Projects].
75
Ibid.
court action and file other necessary court documentation in support of their position,
76
it
can broaden the type of ADR services available to those with less complex family law cases
but have difficulty reaching a final resolution on their own.
C. SIMPLIFYING THE PUBLIC’S ACCESS TO THE FAMILY COURT SYSTEM
Simplifying the family court system can also improve access to justice. Access to legal
services and the court is a critical component of access to justice.
77
To have an effective
court system, it must function in a fair, resourceful and balanced manner to meet the needs
of the public.
78
Nonetheless, the current family court system is becoming more
complicated and more unbalanced in relation to the needs of the public and the disputes
before it.
79
In its final report, the Action Committee stated that
“[e]veryday legal problems need everyday solutions that are timely, fair and
costeffective. Procedures must be simple and proportional for the entire system to
be sustainable. To improve the system, we need a new way of thinking that
concentrates on simplicity, coherence, proportionality and sustainability at every
stage of the process.”
80
In response, family law scholars have advocated for the expansion of the Family Court of
the Superior Court of Justice, also known as the Unified Family Court (“UFC”), across all
of Ontario, as well as the use of technological innovations to create a modern court system
that meets the needs of Ontarians today.
1. Recommendations for Reform to the Family Court System
76
Ibid.
77
Action Committee, Court Processes Simplification Report, supra note 15 at 2.
78
Ibid at 1.
79
Action Committee, A Roadmap for Change, supra note 2 at 8.
80
Ibid.
i. Unified Family Court
Many scholars agree that the UFC will assist with the access to justice crisis.
81
For
Ontarians, family law includes both federal and provincial legislation; thus, in the absence
of the UFC, jurisdiction over family cases in Ontario is split between the Superior Court of
Justice and the Ontario Court of Justice.
82
The UFC is a court which hears all family law
disputes in one forum, regardless of what federal or provincial claims are being sought.
83
With the increase in complex and high-conflict family matters before the court, expanding
the public’s ability to access the court through the UFC can help to simplify the family
court system and make it easier for families to navigate. This can also assist in reducing the
amount of additional conflict between the parties and provide healthier long-term
resolutions for families and their children.
84
Case management is a unique feature of the UFC that makes the court system more
accessible. This is where the same judge presides over all stages of a court matter, including
conferences and motions, meaning which means "[o]ne judge for one family."
85
Case
management can provide judges with an influential tool to assist in improving access to
justice by facilitating more settlement and providing the public with more accountability
and consistency within the family court system.
86
This is due to the fact that judges in the
UFC are specialized in family law prior to being appointed to the bench and therefore have
81
See Bala, supra note 35 at 301; Czutrin, supra note 35 at 319 to 320; Action Committee, Beyond Wise
Words, supra note 4 at 7, 8, 46-48; Landeau, supra note 2 at 17; Law Commission of Ontario, supra note 2
at 29; David M. Steinberg, "Developing a Unified Family Court in Ontario” (1999) 37:4 Family &
Conciliation Courts Rev 454; Barbara A. Babb & Judith D. Moran, Caring for Families in Court: An
Essential Approach to Family Justice (Abingdon, Oxon; New York, NY: Routledge, 2019) at 6.
82
Ontario Superior Court of Justice, “Family Proceedings” (last visited 23 August 2021) online:
<www.ontariocourts.ca/scj/family/> [Ontario Superior Court of Justice, Family Proceedings].
83
Department of Justice Canada, “The Unified Family Court Summative Evaluation Final Report” (March
2009), online (pdf): Evaluation Division, Office of Strategic Planning and Performance Management <
www.justice.gc.ca/eng/rp-pr/cp-pm/eval/rep-rap/09/ufc-tuf/ufc.pdf> [Department of Justice Canada] at 1.
84
Ibid.
85
Bala, supra note 35 at 298; See also Landau, supra note 2 at 5, 15; Family Law Rules, supra note 47 at r
39(9).
86
Action Committee, Court Processes Simplification Report, supra note 15 at 8.
specific experience and knowledge in helping families navigate the court system.
87
Additionally, high conflict and high risk family cases use a disproportional amount of
justice system resources.
88
A specialized judge can identify these cases early on and provide
a greater degree of supervision and accountability to better promote safety and settlement.
89
The UFC can help reduce the amount of time it takes to resolve a family matter, and as a
result, reduce costs for families across
Ontario.
90
ii. Use of Technology
Technology can improve access to family justice because it is more efficient, cost effective
and user-friendly.
91
While the advancements of technology continue to change modern life,
many have observed that these technological developments are by-passing the justice
system.
92
As a result, scholars have recommended four ways that technology could be used
to improve access to the family court system.
Virtual court appearances are the most prominent recommendation for improving access to
family law justice through the use of technology.
93
Virtual appearances save the cost and
inconvenience of travelling to court as people can access the court system from the comfort
of their own home. This is especially important for disabled litigants, those living in remote
87
Action Committee, A Roadmap for Change, supra note 2 at 19.
88
Bala, supra note 35 at 299.
89
Department of Justice Canada, supra note 88 at 36.
90
Action Committee, Court Processes Simplification Report, supra note 15 at 8.
91
Ibid at 5; Darin Thompson, "Creating New Pathways to Justice Using Simple Artificial Intelligence and
Online Dispute Resolution" (2015) 2:1 IJODR 4 at 8.
92
See e.g. Action Committee, Legal Services Report, supra note 14 at 3; Action Committee, Court Processes
Simplification Report, supra note 15 at 5; Action Committee, A Roadmap for Change, supra note 2 at 16;
Action Committee, Beyond Wise Words, supra note 4 at 55; Ontario, Putting Justice Within Reach, supra
note 2.
93
Ontario, Putting Justice Within Reach, supra note 2 at 11; Action Committee, Court Processes
Simplification Report, supra note 15 at 7 - 8; Action Committee, A Roadmap for Change, supra note 2 at 17;
Wolf, supra note 71 at 785; Bailey, Burkell & Reynolds, supra note 2 at 201.
arears, and the poor.
94
It can also increase the safety of family litigants, including those who
have been subject to domestic violence.
95
Many scholars have also recommended simple and interactive court forms to improve
access to justice.
96
This includes forms that use plain language, a question and answer
approach, or tick the box.
97
Many family litigants rely on court forms for guidance and
advice on what information and documentation they must provide when filing a family law
claim. However, many of the family law forms are difficult to understand and complete,
resulting in barriers to those who do not have the assistance from a lawyer.
98
Simplified,
interactive court forms can save money and time for both the court and litigants by assisting
the public in properly completing the applicable court forms, resulting in fewer rejections
from the court staff.
99
This can help empower family litigants and give them confidence
when navigating the family court system.
Electronic filing of court documents is another recommendation to improve access to
justice.
100
Electronic filing minimizes or eliminates in-person attendances and provides
some of the same accessibility benefits as virtual hearings.
101
It no longer requires a person
94
Bailey, Burkell & Reynolds, supra note 2 at 200- 201; CBA, No Turning Back, supra note 65 at 9.
95
Bailey, Burkell & Reynolds, supra note 2 at 200; See also Wolf, supra note 71 at 785.
96
See, e.g. Macfarlane, The National Self-Represented Litigants Project, supra note 2 at 9; Law
Commission of Ontario, supra note 2 at 22; Landau, supra note 2 at 15; Action Committee, Court Processes
Simplification Report, supra note 15 at 5; Action Committee, Beyond Wise Words, supra note 4 at 49-50.
97
Action Committee, Court Processes Simplification Report, supra note 15 at 6; Action Committee, Beyond
Wise Words, supra note 14 at 49; Macfarlane, The National Self-Represented Litigants Project, supra note 2
at 9.
98
Macfarlane, The National Self-Represented Litigants Project, supra note 2 at 9.
99
Ibid; Bailey, Burkell; & Reynolds, supra note 2 at 195; Action Committee, Court Processes Simplification
Report, supra note 15 at 5.
100
See, e.g., Action Committee, A Roadmap for Change, supra note 2 at 16; Ontario, Putting Justice Within
Reach, supra note 2 at 3; CBA, No Turning Back, supra note 65 at 9.
101
Action Committee, Court Processes Simplification Report, supra note 15 at 6-7.
to take time away from their work and family to attend court in person for things that could
be dealt with online.
102
Another recommended measure to improve access to justice is real time court orders.
103
Prior to the COVID-19 pandemic, there was no mechanism in place that allowed judges to
create and sign court orders on the spot, unless the order was anticipated and prepared in
advance by counsel. Hodson recognized the benefits from real time court orders, including
significantly reducing the time the court spends on approving draft orders,
104
as well as the
ability to standardize the wording of court orders to ensure consistency.
105
2. Improvements Made to Simplify the Family Court System in Ontario
Prior to the COVID-19 pandemic, the use of technology in the family justice system was
slow and sparse. The placement of Wi-Fi in each of the courthouses across Ontario did not
begin until the fall of 2017, and was not expected to be completed until 2019.
106
Almost all
court appearances, as well as the issuing and filing of court documentation, took place in
person, and paper disclosure was still widely used. In 2018, Ontario introduced online filing
of joint divorce applications.
107
That same year, the Ministry of the Attorney General also
partnered with CLEO to develop online interactive Guided Pathways to Family Court
Forms which allowed users to generate family court forms simply by answering a series of
online question and upon completion, the software organizes the answers given and enters
102
Ontario, Putting Justice Within Reach, supra note 2 at 3.
103
Action Committee, A Roadmap for Change, supra note 2 at 16-17; Action Committee on Access to Justice
in Civil and Family Matters, “Colloquium Report” (June 2014), online (pdf): Canadian Forum on Civil
Justice <www.cfcj-fcjc.org/sites/default/files//docs/2014/ac_colloquium_web_FINAL.pdf> at 9.
104
David Hodson, “The Role, Benefits, and Concerns of Digital Technology in the Family Justice System”
(2019) 57:3 Fam C Rev 425 at 426.
105
Ibid at 427.
106
Ontario, Putting Justice Within Reach, supra note 2 at 12.
107
Ontario Bar Association, “Update: The Online Filing Service for Joint Divorce Applications is Available
as of November 19, 2018” (19 November 2018), online:
<www.oba.org/Sections/FamilyLaw/Resources/Resources/Update-The-Online-Filing-Service-for-Joint-
Divor>.
it onto the appropriate form.
108
This program has since been further expanded to include
conference briefs, completing net family property statements, and making or responding to
a motion, just to name a few.
109
Following Chief Justice Morawetz's announcement in March 2020 that most in-person
court operations in Ontario would be suspended, the family court system underwent
significant technological change.
110
To ensure that social distancing restrictions were
adhered to, most family court appearances were heard virtually, including motions,
conferences, and trials.
111
Court documents could also be commissioned and signed
electronically,
112
as well as filed through specific courthouse e-mail addresses rather than
in person.
113
As a result of the suspension of in-person court operations, significant delays were caused
due to the inability to access physical family files. A family law matter could not be handled
properly if the files were not accessible. Consequently, many litigants were forced to scan
and email copies of their court documents to the courthouse in order for judges to access
files remotely. An online document exchange system therefore became necessary. On July
29, 2020, the Ministry of the Attorney General announced the use of Thomson Reuters
108
Ibid; Action Committee, Beyond Wise Words, supra note 4 at 49-50.
109
Steps to Justice, “About Family Law Guided Pathways” (last visited 23 August 2021), online:
<stepstojustice.ca/guided-pathways/family-
law/?gclid=cjwkcajwnpoebha0eiwa609refwz8bjmlcmgbm3orjzxsc6w-b_24dr4pfdkitf9k3cjle28-
3q7bocpeaqavd_bwe>.
110
Morawetz, Notice to the Profession, supra note 7.
111
Morawetz, Notice to the Profession, supra note 7.
112
Administering Oath or Declaration Remotely, O. Reg. 431/20; See also, Law Society of Ontario,
“Remote Commissioning” (last visited 23 August 2021) online: <lso.ca/lawyers/practice-supports-
andresources/topics/the-lawyer-client-relationship/commissioner-for-taking-affidavits-and-
notarypubl/l%E2%80%99attestation-a-distance>.
113
Morawetz, Notice to the Profession, supra note 7; Tania Sourdin, Bin Li & Donna Marie McNamara,
“Court Innovations and Access to Justice In Times Of Crisis” (2020) 9 HPT 447 [Sourdin, Li & McNamara]
at 449.
CaseLines (“CaseLines”) in the Ontario Superior Court of Justice,
114
which allows for
litigants and the court to upload and access their specific family law file online. On August
10, 2020, the CaseLines pilot project began in Toronto, including family matters other than
child protection cases or cases that were subject to a sealing order.
115
As of April 19, 2021,
the use of CaseLines was expanded to Central East and Central South judicial regions, with
a continued province-wide rollout to be expanded throughout Spring and early Summer
2021.
116
Throughout the pandemic, the Ontario Family Law Rules
117
have been amended several
times to accommodate the technological advancements within the family justice system.
This includes giving the courts discretion over the use of telephone or video technology in
a case,
118
permitting electronic filing of court documents through the Ontario Justice
Services website,
119
as well as permitting electronic signatures on court documents.
120
Furthermore, the Attorney General for Ontario, Doug Downey, recently wrote a letter to
the Federations of Ontario Law Associations Family Law Committee, asking for input on
the proposal to create new standard orders regarding financial disclosure requirements in
family law matters.
121
It is being proposed that once a pleading is issued, standard financial
114
Memorandum from Chief Justice Geoffrey B. Morawetz to Bar and Legal Associations re: CaseLines (29
July 2020), online: <www.ontariocourts.ca/scj/notices-and-orders-covid-19-supplementary-memoaugust-6-
2020/>.
115
Chief Justice Geoffrey B. Morawetz, “Supplementary Notice to the Profession and Litigants in Civil and
Family Matters Regarding the Caselines Pilot, E-Filing, and Fee Payment” (last modified 17 June 2021)
online: Ontario Superior Court of Justice <www.ontariocourts.ca/scj/notices-and-orders-
covid19/supplementary-notice-september-2-2020/>.
116
Law Society of Ontario, “Frequently Asked Questions: CaseLines” (last modified 6 July 2021) online:
<lso.ca/lawyers/practice-supports-and-resources/practice-area/civil-litigation/caselines-frequently-
askedquestions#3-what-is-the-estimated-timeline-for-rolling-out-caselines—7>.
117
Family Law Rules, supra note 47.
118
Ibid at r 1(7.2)(i.1), 1(7.3.1).
119
Ibid at r 1.1; See also, Ontario, Log In, (last visited 23
August 2021) online:
<www.justiceservices.jus.gov.on.ca/MyAccount/screens/OneKey/login.xhtml?lang=EN>.
120
Family Law Rules, supra note 47 at r 1.1(1).
121
Letter from Attorney General Doug Downey to Federations of Ontario Law Associations (11 May 2021).
disclosure orders would be made automatically by the clerk of the court in every case in
the UFC, excluding child protection cases and applications for simple and joint
divorces.
122
Shortly following the World Health Organization’s announcement of the COVID-19
becoming a global pandemic, the Canadian Bar Association (“CBA”) created a COVID19
Task Force to evaluate the urgent and progressing issues of the delivery of legal services
caused by the COVID-19 pandemic.
123
On February 17, 2021, the CBA’s COVID-19 Task
Force released their final report which identified ways in which the justice system could
reposition how legal services could be provided during and after the pandemic to ensure it
remains accessible, current and dedicated to focusing on those pursuing justice.
124
Two
important themes emerged from this report. First, there will be no going back to the way
the justice performed prior to the pandemic. Second, the innovative technologies and
processes must be implemented to improve access to justice and not inadvertently prevent
it.
125
After examining recent reforms to the family justice system, particularly those
implemented in response to the COVID-19 pandemic, the changes appear to have
positively responded to earlier suggestions to make the family justice system more
accessible. However, it must be determined whether the changes made in creating the
current Ontario family justice system were the fundamental and bold changes required to
meet the expanded vision of access to justice identified by many.
IV. THE PRESENT ONTARIO FAMILY JUSTICE SYSTEM
So far, this paper has examined the key recommendations made to make the family justice
system more accessible, as well as the changes implemented in response to these
122
Ibid.
123
CBA, No Turning Back, supra note 65 at 3.
124
Ibid at 6 - 7.
125
CBA, No Turning Back, supra note 65 at 8.
recommendations. This section will consider whether the current system has resulted in
more meaningful access to justice, as well as what the recent changes to the system mean
for access to family law justice initiatives moving forward.
A. VALUABLE LEGAL INFORMATION AVAILABLE TO THE PUBLIC
The new and improved legal information services, such as the MIP, the FLIC, and
enhancements to the Steps to Justice website, allow for accurate, relevant and clear legal
information to be provided early in a family law dispute.
126
However, whether people are
aware of the existence of these services and whether they actually assist those seeking
information must be examined.
One disadvantage of the MIP and the FLIC is that they are only available at the local
courthouse. As a result, until they enter the courthouse, the public may not be aware these
services exist. While information about these programs are available on the Ontario
government website, it is difficult to find unless the individual knows exactly what to look
for.
Another concern is whether the information provided at the MIP and the FLIC is actually
useful. Farrow and Jacobs recently reviewed the Evolving Justice Services Research
Project (“EJSRP”) which investigated the effect of legal information provided to those in
the Ontario and British Columbia justice systems.
127
The project evaluated the effectiveness
of legal information in assisting people with every day legal problems over a three-year
period.
128
The Ontario MIP’s were part of this study. After review of the results from the
study and comments by its participants, Farrow and Jacobs found that individuals with
legal issues follow different ways to justice and therefore specific information is needed at
various points along the way.
129
They ultimately concluded that changes to the MIP, such
126
Farrow & Jacobs, supra note 12 at 195.
127
Farrow & Jacobs, supra note 12 at 192.
128
Ibid.
129
Ibid at 193.
as to the script and delivery of information to include videos and scenario-based role-
playing, are required in order for it to adequately help the users of family legal services.
130
While the improvements to the Steps to Justice website have undoubtedly provided the
public with easy-to-understand legal information, the public’s awareness of the availability
of these services also remains an issue.
131
If users of the family justice system do not have
access to the available legal information, it is as if the information did not exist at all. It is
therefore recommended that these services be promoted more effectively.
One cost-effective way to promote these services can be to inform all family lawyers about
the existence of these services so that they can direct both potential and existing clients to
it. Those who call into law offices seeking assistance from a lawyer but ultimately find out
they cannot afford to retain one can be directed to the Steps to Justice website for guidance.
Existing clients can also benefit from these services, which provide a solid foundation of
common legal concepts and terms. This allows the lawyer and client to spend more time
together, focusing on the complex and unique challenges of their case rather than simple
terms and information readily available online. This can also save the client money on legal
fees by allowing them to ask specific questions about their case and engage in more in-
depth discussions with their lawyer. Clients who receive specialized knowledge and
support from their lawyer may avoid the feeling of wasting money on legal fees.
The current infrastructure for the public's ability to access reliable, accurate, and easy-
tounderstand legal information is available as a result of recent changes. However,
following the results from the EJSRP, it is evident that more empirical research is needed
to determine whether the current informational initiatives actually provide the public with
what is needed to observe meaningful access to justice in Ontario.
130
Ibid at 202.
131
Landau, supra note 2 at 7-8.
B. EXISTING ALTERNATIVE DISPUTE RESOLUTION INITIATIVES
The federal and provincial governments are taking positive steps toward making the family
justice system more accessible with the use of ADR services. This can be seen through the
recent amendments to the Divorce Act,
132
Family Law Act
133
and Children’s Law Reform
Act.
134
Placing greater responsibility on legal practitioners for informing their clients about
the various ADR services available to them improves access to justice.
However, numerous challenges remain unaddressed by the new legislative initiatives,
preventing meaningful access to justice from being fully achieved. This includes the
inability to reach everyone who wishes to access the family justice system. While the
objectives behind mandating lawyers to advise their respective clients about the ADR
services is clear, the difficulty is that at least 50% of people continue to choose to represent
themselves.
135
As a result, not everyone can afford to seek legal advice from a lawyer, and
if the public does not seek legal advice, they are less likely to receive information about
ADR services that can assist them.
There is also no guidance from the governments regarding what information, and how
much information, the lawyer should provide when advising clients about ADR services.
Some lawyers may simply ignore this requirement, or provide very little information about
the services in order for clients to understand whether it will truly help them. Supplying
lawyers with handouts or a link to the government website to provide to their clients can
assist in ensuring the public receives consistent information about the ADR services that
are available.
Another challenge is the cultural shift that will be required from the family bar to increase
its use of ADR services. It is acknowledged that cultural change in the legal profession does
132
Divorce Act, supra note 72.
133
Family Law Act, supra note 73.
134
Children’s Law Reform Act, supra note 74.
135
Macfarlane, The National Self-Represented Litigants Project, supra note 2; Action Committee, A
Roadmap for Change, supra note 2 at 4.
not occur overnight. Scholars have proposed that reform begin at the law school level, with
the goal of developing negotiation skills early on in a way that promotes collaborative
partnership with all parties involved.
136
Creating a collaborative foundation for all family
lawyers early on in their education can assist in making a more meaningful family justice
system. However, if law schools do not require ADR training as part of its curriculum, then
the development of the “new lawyer” will be limited to only those who are interested. Until
then, family law practitioners will need to take the lead in advancing access to justice
initiatives.
137
Additionally, raising public awareness of the various ADR services available does not
change the fact that these services continue to be expensive for the vast majority of people.
Although the government has responded by providing free mediation at the courthouse,
these services are only available to people who have already filed a court action and are
only available on the day of a court date. While it is understandable that the government
cannot provide free mediation to everyone, only providing free mediation to those who
initiate a court action is illogical and counter-intuitive. It has been recognized that middle-
income earners require the most assistance,
138
therefore free mediation should be made
available to them without the need to initiate litigation.
The recent rise in virtual ADR services as a result of the COVID-19 pandemic can also
assist with the issue of cost. This has allowed for parties to retain mediators or arbitrators
from different cities with possibly cheaper rates and not having to pay for travel fees. As a
result, virtual ADR has provided an accessible justice system by responding appropriately
to the rise in family disputes caused by the COVID-19 pandemic by modernizing the way
ADR services are provided to the public. It is likely that the virtual nature of ADR services
will remain after the COVID-19 pandemic has ended.
136
Action Committee, A Roadmap for Change, supra note 2 at 15; Semple & Bala, supra note 30 at 17.
137
Action Committee, Court Processes Simplification Report, supra note 15 at 20.
138
Trebilcock, Duggan & Sossin, supra note 1.
On the other hand, the requirements to participate in the new Binding Judicial Dispute
Resolution pilot project do not result in a more accessible justice system. While the project's
intentions are good, the reality is that it cannot assist the vast majority of those in the family
court system who are in need of the project due to the unrealistic requirements that must
be met in order to be eligible. For example, the requirements include less complex cases
that do not involve witnesses other than the parties, where necessary financial disclosure
or other information has already been exchanged and where the parties substantially agree
on the facts.
139
Furthermore, the government has stated that due to time constraints, cases
requiring more than two to three hours of hearing time are not appropriate for the pilot
project.
140
Those who are eligible for the project are unlikely to be involved in litigation in
the first place.
Additionally, despite the recommendation to expand ADR services to include ODR,
nothing has yet been implemented in Ontario family law. While the CBA Task Force has
recently stated that any venture into online platforms in family law matters is difficult,
141
it
is still critical that ODR be considered as an additional family law ADR service in order to
help make the family justice system more accessible. The advancement of ODR in family
law may become necessary in order for the system to remain accessible to the public due
the reliance on technology in all aspects of their lives. It is acknowledged that some family
issues may be too complex to be dealt with through ODR, and that some people may lack
the technology or ability to fully participate in a digital justice system.
142
It is therefore
critical that barriers to an ODR service be identified and addressed before it is implemented
within the family justice system.
139
Morawetz, Binding Judicial Dispute Resolution Pilot Projects, supra note 79.
140
Ibid.
141
CBA, No Turning Back, supra note 65 at 15.
142
CBA, No Turning Back, supra note 65 at 15.
C. A MODERN FAMILY COURT SYSTEM
The recent changes to the family court system have made it easier to use and more
accessible. This includes the expansion of the UFC, which now has 25 locations across
Ontario.
143
The UFC and its case management function has fundamentally shifted the
judiciary’s role from adjudicative to settlement and management oriented. This has the
potential to greatly benefit those involved in the court system by reducing delays and
increasing savings for family litigants by assisting in narrowing issues and settling cases as
quickly as possible.
The most significant change to the family court system is the use of virtual court
appearances in all or any part of a family case, at the court’s sole discretion.
144
Once the
COVID-19 pandemic has passed, virtual court appearances should not be used for the entire
court process. Virtual appearances are appropriate for procedural, uncontested, and less
complicated matters. This includes first appearances before a clerk, speak-to court dates
and trial management conferences where the only issues being decided are the scheduling
of future court dates and timelines for production of documentation. Virtual appearances
are also appropriate for uncontested trials, short and urgent motions, and case conferences
as only procedural or consent orders can be made. Having these matters heard virtually
can reduce costs for family litigants because they no longer have to take a full day off from
work to attend.
The option of participating in a settlement conference virtually or in person should still be
made available on a case-by-case basis. This is because some cases have progressed more
quickly than others. Some cases, for example, are still awaiting significant financial
disclosure at the settlement conference stage, while others are ready for trial. Cases that are
trial ready at the settlement conference stage may benefit more from being held inperson
rather than virtually due to the formality and trial-like atmosphere that can be provided in
143
Ontario Superior Court of Justice, Family Proceedings, supra note 87.
144
Family Law Rules, supra note 47 at r 1(7.2)(i.1), 1(7.3.1).
the courthouse. This may give the parties a better idea of what a trial is like and assist in
the resolution of the matter.
The option of participating in a trial virtually or in-person should also be available on a
case-by-case basis. Trials are often days in length, contain numerous witnesses, sometimes
expert witnesses, and require substantial amount of documentary evidence to be exchanged.
Virtual trials can assist with these challenges, by allowing the court to better assess
credibility of witnesses more closely at a screen and accommodate schedules of the
witnesses.
145
Also, CaseLine’s has greatly assisted the court and litigants in managing the
heavy document load. However, some people can be uncomfortable with the technology
required, including navigating different screens and programs during a trial, and therefore
having a virtual trial may put those individuals at a disadvantage.
To ensure consistency across Ontario's family court system, the judiciary should establish
unified guidelines for what types of cases should be heard in person versus remotely.
Having guidance can help parties understand the circumstances under which the court will
or will not allow a matter to proceed remotely when making arguments to the court on the
issue. Providing the public with a court system that reliably and consistently manages each
family dispute will promote meaningful access to justice.
Despite not being mentioned in any of the prominent reports or scholarship on family law
reform, a document exchange system such as CaseLines can also facilitate access to justice
by improving the efficiency of the court. This reduces both costs and delays for the systems
users, and benefits marginalized members such as those living in rural communities and
SRL’s.
146
In Ontario family law, numerous documents must be exchanged, including
significant financial disclosure such as bank statements, income tax returns, and corporate
documentation. CaseLines has resulted in less paper and printing, easier access to files
online, and better management of evidence during motions and trials, whether held in-
145
CBA, No Turning Back, supra note 65 at 9.
146
Bailey, Burkell & Reynolds, supra note 2 at 195, 197-198.
person or virtually. It is unlikely that the court system will return to its previous method of
document exchange.
It is also hopeful that the suggestion for a standardized financial disclosure order at the
outset of each new family case will become a reality. This can help facilitate consistency
in the wording of orders across Ontario, and most importantly, reducing the amount of court
time required to bring motions against those who refuse to provide mandated financial
disclosure. This can also assist SRL’s in understanding their financial disclosure obligations
at the outset of their family case and prevent family professionals, such as opposing counsel
and judges, from providing legal advice to the SRL unintentionally.
D. CHALLENGES RESULTING FROM THE USE OF TECHNOLOGY
It is unrealistic to expect that increased use of technology in access to justice initiatives will
benefit all people affected by the family justice system.
147
Individuals who do not have
access to the internet or simply cannot afford it may be unable to participate in family
matters remotely, or may be forced to do so in public places where free Wi-Fi is available.
148
People with low literacy skills, mental disabilities, or visual or literacy impairments may
also have difficulty using technologies such as e-filing and interactive court forms.
149
Additionally, due to the substantial amount of confidential information relied on throughout
a family matter, the court’s recent reliance on the internet and virtual court appearances
raises privacy concerns.
150
Issues have also been raised about the virtual nature of the
courtroom, such as the potential loss of appreciation for the importance and civility of the
justice system, as well as the perceived disadvantages of advocating virtually rather than
in person.
151
These are just a few examples of how recent technological advancements in
the family justice system have shifted the public’s perception of the system in a negative
147
Ibid at 182; Morrison, supra note 70 at 15.
148
Bailey, Burkell & Reynolds, supra note 2 at 199.
149
Ibid at 196-197; Sourdin, Li & McNamara, supra note 119 at 450; Action Committee, Legal Services
Report, supra note 14 at 7.
150
CBA, No Turning Back, supra note 65 at 12-14.
151
CBA, No Turning Back, supra note 65 at 9- 10; Bailey, Burkell & Reynolds, supra note 2 at 203.
direction, with the public believing that access to justice is now out of reach for the majority
of people.
152
As a result, if the use of technology within the family justice system continues
to ignore the needs of the vulnerable community, it may exacerbate the access to justice
crisis.
153
CONCLUSION
The COVID-19 pandemic has unquestionably heightened the desire for an accessible
family justice system. It has also forced the opportunity to revolutionize the Ontario family
justice system in a way that can allow for real and substantial change. Ontario has moved
closer to having accurate, reliable, and easy-to-understand legal information as a result of
justice reforms through programs such as the MIP, the FLIC, and Steps to Justice website.
The recent federal and provincial legislative changes have also raised awareness of the
importance of providing ADR services to each family going through a separation. Most
importantly, the UFC and increased use of technology are simplifying and making the
family court system easier to use. However, while recent technological advancements have
brought us closer to improving access to justice in Ontario, drawbacks have emerged, and
certain vulnerable groups have remained disadvantaged.
The number of access to family justice initiatives continues to grow, and the practical
reform suggestions should compel key stakeholders and policymakers to pursue these
solutions forcefully. Nonetheless, the recommended courses of action for change needed to
make the Ontario family justice system accessible for all remains unfulfilled. The CBA
Task Force appropriately stated, “in the end, the secret of getting ahead is getting
started.”
154
Ontario has started, but positive change in its family justice system must
continue after the COVID-19 pandemic is over to ensure the most vulnerable people are
not left behind.
152
CBA, No Turning Back, supra note 65 at 6.
153
Action Committee on Access to Justice in Civil and Family Matters, “Tracking our Progress: Canada’s
Justice Development Goals in 2019” (2020), online (pdf): Canada’s Justice Development Goals
<www.justicedevelopmentgoals.ca/sites/default/files/canadajdg_report19_en_0.pdf> at 17.
154
CBA, No Turning Back, supra note 65 at 24.
INTRODUCTION
Access to family law justice has been identified as a crisis in the Canadian legal system for
decades.1 Over the years, prominent family law scholars have published numerous reports
and articles outlining recommendations to make the justice system more accessible,
responsive and user-focused.2 Among the reports was the 2013 final report of the national
Action Committee on Access to Justice in Civil and Family Matters (“Action Committee”),
which provided realistic and achievable goals for improving access to justice3 and a call to
action for “bold innovation” and a “fundamental overhaul” of the
3 Trevor C.W. Farrow, “What is Access to Justice?” (2014) 51:3 OsgoodeHall LJ 957 at 963, 965,
972; See also, Michael Trebilcock, Anthony Duggan & Lorne Sossin, Middle Income Access to Justice
(Toronto: University of Toronto Press, 2012) [Trebilcock, Duggan & Sossin] at 271; Beverley McLachlin,
“As Courts Reopen, Let’s Focus On Creating Equitable Access To Justice For All”, Globe and Mail (10 July
2020), online: < https://www.theglobeandmail.com/opinion/article-as-courts-reopen-lets-focus-on-
creatingequitable-access-to-justice/>.
4 See especially Action Committee on Access to Justice in Civil and Family Matters, “Access to Civil
& Family Justice: A Roadmap for Change” (October 2013), online (pdf): Canadian Forum on Civil Justice
<www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf> [Action Committee, A
Roadmap for Change]; Ontario, “Putting Justice Within Reach: The Foundation for User-Focused Justice in
Ontario” (29 November 2017), online (pdf): <www.ontario.ca/page/putting-justice-within-reach-plan-
userfocused-justice-ontario> [Ontario, Putting Justice Within Reach]; The Canadian Bar Association,
“Reaching Equal Justice Report, An Invitation To Envision and Act” (November 2013), online (pdf):
<lawsocietyontario.azureedge.net/media/lso/media/legacy/pdf/c/cba_equal_justice.pdf> [CBA, Reaching
Equal Justice Report]; Law Commission of Ontario, “Increasing Access to Family Justice Through
Comprehensive Entry Points and Inclusivity, Final Report” (February 2013), online (pdf):
<www.lcocdo.org/wp-content/uploads/2013/06/family-law-reform-final-report.pdf> [Law Commission of
Ontario]; The Action Group on Access to Justice, “Public Perceptions of Access to Justice in Ontario” (25
October
2016) online (pdf): The Access to Justice Research Network <theactiongroup.ca/wp-
content/uploads/2015/08/Abacus_TAG_Release_Oct14.pdf> [The Action Group on Access to Justice]; Dr.
Barbara Landau et al., “Creating a Family Law Process that Works: Final Report and Recommendations from
the Home Court Advantage Summit” (Paper delivered at Home Court Advantage Summit, 22-23 November
2009) [unpublished] [Landau]; Dr. Julie Macfarlane, “The National Self-Represented Litigants Project:
Identifying and Meeting the Needs of Self-Represented Litigants” (May 2013), online (pdf):
Representing Yourself Canada <representingyourselfcanada.com/wp-
content/uploads/2016/09/srlreportfinal.pdf> [Macfarlane, The National Self-Represented Litigants Project];
Peter Salem & Michael Saini, "A Survey of Beliefs and Priorities about Access to Justice of Family Law: The
Search for a Multidisciplinary Perspective" (2017) 55:1 Fam Ct Rev 120 [Salem & Saini]; Jane Bailey,
Jacquelyn Burkell & Graham Reynolds, "Access to Justice for All: Towards an Expansive Vision of Justice
and Technology" (2013) 31:2 Windsor YB Access Just 181 [Bailey, Burkell & Reynolds]; Michael Saini,
Rachel Birnbaum & Nicholas Bala, "Access to Justice in Ontario's Family Courts: The Parents' Perspective"
(2016) 37 Windsor Rev Legal Soc issues 1 [Saini, Birnbaum & Bala]; Thomas A. Cromwell, “Access to
Justice: Towards a Collaborative and Strategic Approach” (2012) 63 UNBLJ 38 [Cromwell]. 3 Acton
Committee, A Roadmap for Change, supra note 2.
Canadian justice system.
155
Following the release of the Action Committee's final report,
significant reforms to the Ontario family justice system began. However, it was not enough
as the crisis continued, with those seeking access to the family justice system still finding
it inaccessible, expensive and difficult to navigate.
156
The COVID-19 pandemic then brought further attention to the continued inaccessibility of
the Ontario family justice system. On March 11, 2020, the World Health Organization
officially declared COVID-19 as a global pandemic.
157
Four days later, on March 15, 2020,
Chief Justice Morawetz announced the suspension of all regular court operations across
Ontario effective March 17, 2020.
158
During a period of abrupt social distancing measures,
mandatory working from home and school closures, those in Ontario's family justice
system were forced to confront the reality that the current system was not fit for life in the
digital age.
159
Due to pandemic-related restrictions, the Ontario family justice system was
forced to make significant and necessary changes, particularly technological
advancements, in order to remain accessible. This paper will examine whether the recent
155
Action Committee on Access to Justice in Civil and Family Matters, “Meaningful Change for Family
Justice: Beyond Wise Words, Final Report of the Family Justice Working Group” (April 2013) online
(pdf): Canadian Forum on Civil Justice <www.cfcj-
fcjc.org/sites/default/files/docs/2013/Report%20of%20the%20Family%20Law%20WG%20Meaningful%2
0Change%20April%202013.pdf> [Action Committee, Beyond Wise Words] at 8.
156
See eg. Law Commission of Ontario, supra note 2 at foreword, 26, 73; Saini, Birnbaum & Bala, supra
note 2; Landau, supra note 2 at 7; Macfarlane, The National Self-Represented Litigants Project, supra note
2 at 40-41.
157
Dr. Tedros Adhanom Ghebreyesus, “WHO Director-General's opening remarks at the media briefing on
COVID-19 - 11 March 2020” (11 March 2020), online: World Health Organization
</www.who.int/director-general/speeches/detail/who-director-general-s-opening-remarks-at-the-
mediabriefing-on-covid-19---11-march-2020.
158
Chief Justice Geoffrey B. Morawetz, “Notice to the Profession, the Public and the Media Regarding Civil
and Family Proceedings” (15 March 2020), online: Ontario Superior Court of Justice
</www.ontariocourts.ca/scj/notices-and-orders-covid-19/notices-no-longer-in-effect/covid-19-
suspensionfam/> [Morawetz, Notice to the Profession].
159
Benjamin P Cooper, "Preliminary Thoughts on Access to Justice in the Age of COVID-19" (2020) 56:2
Gonz L Rev 227 at 234.
changes to Ontario's family justice system, including those implemented in response to the
COVID-19 pandemic, have made the system more accessible than ever before.
This paper proceeds as follows. Part I sets out the definition of access to justice and
describes what an accessible family justice system looks like. Part II considers how the
Ontario government has contributed to the access to justice crisis and provides specific
examples as to why Ontario’s family justice system remains inaccessible. Part III discusses
the key recommendations for reform that have been made to make the Ontario family
justice system more accessible, including the public’s access to legal information, access
to alternative dispute resolution services, and access to the courts. Lastly, Part IV provides
a discussion on where the current Ontario family justice system is, and determines whether
the recent transformation of the system has been the “fundamental” and “bold” change
needed to end the access to justice crisis in Ontario.
I. WHAT IS AN ACCESSIBLE FAMILY JUSTICE SYSTEM?
Access to justice has been a topic of debate in Canada since the 1970s.
160
Scholars have
proposed several theories for access to justice, starting with the idea that it simply refers to
gaining access to the formal court system, including judges and lawyers.
161
Over the last
few decades, there has been an expanded vision of access to justice beyond the courtroom,
to include a system that provides the public with information, resources and services to
help them avoid manage and resolve family law disputes.
162
Trevor Farrow recently labeled
this as “meaningful access to justice,”
163
which takes into account not only how accessible
160
Cromwell, supra note 2 at 39.
161
See, e.g. Salem & Saini, supra note 2 at 121; Bailey, Burkell & Reynolds, supra note 2 at 182.
162
See Action Committee, Beyond Wise Words, supra note 4 at 1-2, 10; Cromwell, supra note 2 at 38-39;
Landau, supra note 2 at 8; Salem & Saini, supra note 2 at 121, 123; Orna Rabinovih-Einy & Ethan Katsh,
“Access to Digital Justice: Fair and Efficient Processes for the Modern Age” (2017) 18 Cardozo J. Conflict
Resol 637 [Rabinovih-Einy & Katsh] at 637-638; Action Committee on Access to Justice in Civil and Family
Matters, “Responding Early, Responding Well: Access to Justice through the Early Resolution Services
Sector” (12 February 2013), online (pdf): Canadian Forum on Civil Justice
<www.cfcjfcjc.org/sites/default/files/docs/2013/Report%20of%20the%20Prevention%2C%20Triage%20an
d%20Refe rral%20WG%20.pdf > [Action Committee, Responding Early Responding Well] at 3.
163
Trevor Farrow & Lesley Jacobs, The Justice Crisis: The Cost and Value of Accessing Law (UBC Press
2020) [Farrow & Jacobs] at 7.
the court system is, but also how accessible the path is for addressing and resolving the
public’s legal disputes.
164
Most importantly, the access to justice debate has highlighted the
realization that, in order to systematically change the system in a way that makes it more
accessible, the change must consider the system’s users rather than the system’s
providers.14 This realization allows for changes to be made that better meet the needs of the
public for whom the justice system was designed for in the first place.15
Given the expanded vision of access to justice, an accessible family justice system is one
that assists the public with all aspects of their family dispute, from the initial stages of
deciding whether to separate to the final stages of settlement or court order. It also provides
the public with accurate and reliable legal knowledge so that they can make informed
decisions throughout their dispute. That legal knowledge can come in different forms, such
as free, online legal information, assistance from court staff, or legal advice from family
law practitioners. An accessible family justice system also services the unique needs of
each and every family by providing them with different ways in which their family dispute
can be addressed and resolved. The needs of Ontarians are not only legal, but can also
include financial, emotional and social, which makes family law particularly distinctive
from other areas of the law. An accessible family justice system also considers the
multidisciplinary nature of family law, as other areas of law, such as landlord and tenant
and tax law, which are frequently integrated in family disputes. Lastly, an accessible family
justice system makes navigating the court system simple and straightforward. This includes
the entire court system, from the court forms required to initiate a court action, to the stages
in each family law case and the court rules. The accessible justice system just described
does not resemble the current Ontario family justice system.
16 Action Committee on Access to Justice in Civil and Family Matters, “Report of the Access to Legal
Services Working Group” (May 2012), online (pdf): Canadian Forum on Civil Justice
<www.cfcjfcjc.org/sites/default/files/docs/2013/Report%20of%20the%20Access%20to%20Legal%20Se
164
Farrow & Jacobs, supra note 12 at 7.
rvices%20Wo rking%20Group.pdf> [Action Committee, Legal Services Report] at 3; Landau, supra note
2 at 8.
17 Action Committee on Access to Justice in Civil and Family Matters, “Report of the Court Processes
Simplification Working Group of the Action Committee on Access to Justice in Civil and Family Matters”
(May 2012), online (pdf): Canadian Forum on Civil Justice < https://www.cfcj-
fcjc.org/sites/default/files/docs/2012/Report%20of%20the%20Court%20Processes%20Simplification%20
Working%20Group.pdf> [Action, Committee, Court Processes Simplification Report] at 21.
II. ONTARIO’S FAMILY JUSTICE SYSTEM CRISIS
Ontario’s family justice system has been in a state of crisis for more than a decade.
165
Some
have attributed the crisis to the Ontario government simply not providing the public with
the services needed to effectively resolve their legal disputes.
166
The legal system’s
escalating cost, significant delays, inconsistencies, complexity and inability to address
issues of domestic violence are just a few of the factors contributing to the growing
dissatisfaction among users of Ontario’s family justice system.
167
This section considers
how the Ontario government has contributed to the access to justice crisis and provides
specific examples as to why Ontario’s family justice system remains inaccessible.
One of the most significant barriers to accessing family justice is the cost of legal
services.
168
Low-income individuals are not the only ones unable to afford proper legal
services. There is now a greater awareness that middle class individuals are unable to obtain
legal services because they cannot afford a lawyer and also do not qualify for legal aid.
169
Contributing to the cost of the family court system is the number of court appearances
Ontarians must attend prior to their matter going to trial.
170
Parties must attend a case
conference, settlement conference and trial management conference before trial. They may
also have to attend motions if temporary orders are required, as well as first appearances
165
See e.g. Saini, Birnbaum & Bala, supra note 2 at 17-20; Law Commission of Ontario, supra note 2 at 5.
166
Cromwell, supra note 2 at 40.
167
Landau, supra note 2 at 8.
168
Saini, Birnbaum & Bala, supra note 2 at 18; Ab Currie, “Let’s Pick Up Where we Left Off 25 Years Ago
to Expand on Access to Civil Justice in Canada” (Toronto: November 2020) online (pdf): Canadian Forum
on Civil Justice <cfcj-fcjc.org/wp-content/uploads/Lets-Pick-Up-Where-We-Left-Off-25-Years-Ago-
ToExpand-Access-To-Civil-Justice-in-Canada-Ab-Currie.pdf> at 5.
169
See Trebilcock, Duggan & Sossin, supra note 1; See also Action Committee, Legal Services Report, supra
note 14 at 3.
170
Saini, Birnbaum & Bala, supra note 2 at 17.
or “speak to dates” to schedule their matter. Where parties are close to settlement, they may
also be required to attend a second settlement conference or trial management conference.
By adding another settlement opportunity with the judge’s assistance, the court system is
further delayed and costs are increased due to additional preparation and court appearances.
As a result of these further court appearances, the time it takes to complete a family court
case is increasing. In addition to these factors, the hourly rates of lawyers have continued
to rise over the years, which has led to an increase in the cost of family law cases.
171
The high cost of legal services occurs not only in the court system, but also when using
alternative dispute resolution (“ADR”) services like mediation, arbitration or collaborative
family law. For example, while arbitration can lead to a final result faster than a trial due
to the current delays in the court system, the arbitration process is still very similar to a
formal trial, which typically includes questioning of the parties at a local court reporters
office, hiring financial experts, as well as the cost of the arbitrator. The use of collaborative
family law includes hiring lawyers for each party, a financial expert, as well as a child-
psychologist if parenting issues are in dispute, all of whom have their own hourly rates. As
a result, when using an ADR service, more professionals are usually required, resulting in
higher legal fees for the parties.
The number of forms that must be completed prior to commencing a court action is another
factor contributing to the inaccessibility of the Ontario family court system. Currently, there
are seven forms that need to be filed in the Ontario Superior Court of Justice if new claims
are being made for parenting, property and support.
172
If a settlement agreement or final
court order needs to be amended and the parties do not agree on the amendments, there are
different forms that need to be completed.
173
The different forms have contributed to the
171
Action Committee, A Roadmap for Change, supra note 2, at 4.
172
Continuing Record, Form 8: Application, Form 13: Financial Statement (Support Claims) or Form 13.1:
Financial Statement (Property and Support Claims), Form 13A: Certificate of Financial Disclosure, Form
35.1 Affidavit (Decision-Making Responsibility, Parenting Time, Contact), Support Deduction Order,
Support Deduction Order Information Form.
173
Form 15: Motion to Change, Form 15A: Change Information Form. If parenting terms need to be
amended, need to also file Form 35.1 Affidavit (Decision-Making Responsibility, Parenting Time, Contact).
If child and/or spousal support terms need to be amended, a party also needs to file Form 13: Financial
confusion of the court system as, for example, even some family law practitioners have
difficulty in understanding whether they need to commence an application or motion to
change when a client is looking to change a separation agreement. As a result, the family
justice system continues to be too complicated and difficult to understand for the public.
174
Based on the expensive and time-consuming nature of family litigation, there has been an
increase in the amount of people who choose to represent themselves in court, also known
as a “self-represented litigant” (“SRL”). In Canada, approximately 50% of people attempt
to resolve their legal dispute on their own based on the continued inaccessibility of the
justice system.
175
The issue with SRL’s is that they have difficulty navigating the family
court system, often need more court resources, and hold unrealistic expectations of what
they may accomplish due to their lack of legal knowledge.
176
A recent study found that 91%
of Ontario family law practitioners felt that costs increased for their client’s when the other
spouse was self-represented.
177
In response to the rise in SRL’s, there have been
recommendations to expand and modernize the way in which legal services are provided,
such as the introduction of unbundled legal services, or the controversial recommendation
of permitting paralegals to assist families with certain family law matters.
178
In light of increasing costs, complexity and delays within the family court system, a greater
need has emerged for more affordable alternatives to courtroom litigation to assist the
public in resolving family law disputes. However, aside from the costs associated with
participating in an ADR service, another issue is that alternatives to court usually involve
Statement (Support Claims), Form 13A: Certificate of Financial Disclosure, Support Deduction Order and
Support Deduction Order Information Form.
174
Action Committee, A Roadmap for Change, supra note 2 at 8.
175
Rachel Birnbaum, Nicholas Bala & Lorne Bertrand, "The Rise of Self-Representation in Canada's Family
Courts: The Complex Picture Revealed in Surveys of Judges, Lawyers and Litigants " (2012) 91:1 Can B
Rev 67 at 71; See also Ibid at 4.
176
Government of Canada, Department of Justice, “JustFacts, Self-Represented Litigants in Family Law”
(June 2016), online: <https://www.justice.gc.ca/eng/rp-pr/fl-lf/divorce/jf-pf/srl-pnr.html>.
177
Justice Annemarie E. Bonkalo, “Family Legal Services Review” (31 December 2016), online: Ministry of
the Attorney General
<https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/family_legal_services_review/>.
178
Ibid.
individuals who are settlement oriented and have some positive relationship with the other
spouse.
179
As a result, there are numerous cases, such as those involving family violence or
parental alienation, where the current ADR services available simply cannot assist families
the way that judicial intervention can. There is therefore a clear gap in Ontario’s family
justice system, as those with ample financial means have better access to the system than
those with limited or no economic means.
180
III. HOW TO MAKE THE ONTARIO FAMILY JUSTICE SYSTEM MORE
ACCESSIBLE
For Ontario to have an accessible family justice system, reform to the system must address
and remove, or at the very least minimize, the numerous factors that contribute to the
frustration among its users. Reports and articles on access to family justice reform made
over the past decade identify three main suggestions for change: (1) the public’s access to
reliable, accurate, and easy-to-understand legal information; (2) the public’s access to
alternative dispute resolution services; and (3) simplifying the public’s access to the family
court system. This section will go over each of these three suggestions in detail, discussing
previous reform proposals and identifying changes made to the Ontario family justice
system in response.
A. THE PUBLIC’S ACCESS TO LEGAL INFORMATION
When people have access to reliable, accurate, and easy-to-understand legal information,
the family justice system is more accessible. In 2013, the Law Commission of Ontario
(“LCO”) appropriately stated,
“[f]or the law to be effective for those who are subject to it, access to knowledge
about the law and capacity to negotiate the law, with or without assistance, is as
179
Noel Semple & Nicholas Bala, “Reforming the Family Justice System: An Evidence-Based Approach”
(2 October 2013) online (pdf):
<papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2366934_code686285.pdf?abstractid=2366934&mirid=1>
[Semple & Bala] at 8.
180
Salem & Saini, supra note 2 at 121.
important as “the law” itself. A “good” statute has limited value if it is difficult to
understand and accessing the rights it provides formidable.”
181
Knowing and exercising one’s rights empowers the public by allowing them to better
understand what rights to pursue, what rights to avoid, and to feel more in control over the
process and outcomes.
182
Additionally, having accurate and reliable legal information can
allow the public to undertake a risk assessment of their claims and weigh what is most
important to them against the potential financial repercussions of pursuing a claim that
might not be successful.
Access to reliable and accurate legal information early in a dispute can also increase the
use of ADR services. The LCO refers to this as "front end loading the system,"
183
as it
allows people to identify the nature of their legal problem early on and then choose the best
method for them to resolve their dispute, such as dealing with it themselves, filing a court
action, or engaging in an ADR service like mediation.
184
By having more information about
the family law system at the beginning of a dispute, people can begin to realize that going
to court is only one of the options available. If more people participate in ADR services,
the court system can be used only for urgent matters, highconflict situations, or precedent-
setting cases.
185
Access to easy-to-understand legal information is especially important for those who
cannot afford a lawyer.
186
SRL’s rely on freely available legal information to educate
181
Law Commission of Ontario, supra note 2 at 5-6.
182
Action Committee, Legal Services Report, supra note 14 at 5.
183
Law Commission of Ontario, supra note 2 at 28.
184
See e.g. Nicholas Bala, “Reforming Family Dispute Resolution in Ontario: Systemic Change and Culture
Shifts” in Trebilcock, Duggan & Sossin, supra note 1 [Bala] at 279; Justice George Czutrin, “Some
Reflections on Family Dispute Resolution in Ontario” in Trebilcock, Duggan & Sossin, supra note 1
[Czutrin] at 326; Cromwell, supra note 2 at 45; Action Committee, Beyond Wise Words, supra note 4 at 7
and 41; Law Commission of Ontario, supra note 2 at 1, 64, 71; Action Committee, Responding Early
Responding Well, supra note 11 at 3; Landau, supra note 2 at 9.
185
Law Commission of Ontario, supra note 2 at 28.
186
Bala, supra note 35 at 291.
themselves about their legal rights and processes. If the legal information is difficult to
understand, SRL’s may remain unfamiliar about the law and the procedures of the legal
system, which may contribute to delays within the family system. Making legal information
simple to comprehend and freely available to the public can help reduce delays, minimize
costs and promote access to justice.
Following the rise in SLR’s, scholars began to recognize that the manner in which legal
information was distributed to the public was contributing to the access to justice
crisis.
187
Many felt that the information available was too complicated to understand
because it was geared towards the legal profession rather than the general public.
188
Others
also felt that there was too much legal information available, particularly as a result of the
internet, making it difficult to navigate and overwhelming for many to know what
information was reliable.
189
Due to these challenges, people with family law issues were
more likely to seek legal advice from friends and family members.
190
According to the
Action Group on Access to Justice, 32% of Ontarians sought legal advice from family
members and friends in 2016, compared to 26% who sought advice from online legal
resources.
191
As a result, the general public may be given incorrect legal information, which
can lead to unmanageable expectations, increased costs and delays in resolution.
187
See e.g. Czutrin, supra note 35 at 320-321; Cromwell, supra note 2 at 39; Action Committee, Beyond
Wise Words, supra note 4 at 41–44; Saini, Birnbaum & Bala, supra note 2 at 19-20; Law Commission of
Ontario, supra note 2 at 18-19; Action Committee, Legal Services Report, supra note 14 at 8.
188
Action Committee, Beyond Wise Words, supra note 4 at 10; Macfarlane, The National Self-Represented
Litigants Project, supra note 2 at 64-65; Saini, Birnbaum & Bala, supra note 2 at 19-20; Law Commission
of Ontario, supra note 2 at 19.
189
Action Committee, A Roadmap for Change, supra note 2 at 13; Law Commission of Ontario, supra note
2 at 18, 59.
190
Law Commission of Ontario, supra note 2 at 18.
191
The Action Group on Access to Justice, supra note 2 at 3.
1. Suggestions for Reform to Make Legal Information More Accessible to the Public
In response to these challenges, one common suggestion for reform among key scholars
was for a single portal of legal information to be made available to the public.
192
This would
enable a centralized access point for reliable legal information to be provided to those with
legal issues. Many have advocated for coordination and collaboration among key
stakeholders, such as government, law foundations, law societies and legal aid plans in
order to be successful in providing timely and accurate information through a central entry
point.
193
The LCO also recognized that an alliance among these stakeholders could help
address the diversity of all Ontarians because they have the experience and knowledge to
contribute to the development of unified legal information.
194
Furthermore, by broadening
the scope of legal information available to the public, families will be able to connect with
the legal and non-legal services that are best suited to their specific needs.
195
2. Recent Advances in Providing Better Legal Information to the Public
In reply to the reform suggestions, Ontario made two distinct changes in terms of providing
legal information to assist individuals in resolving family law disputes. First, the provincial
courthouses responded through the availability of the Mandatory Information Program
(“MIP”)
196
and the Family Law Information Centre (“FLIC”)
197
in each courthouse across
Ontario. The MIP is a mandatory class for all parties who are involved in a family court
case where they learn about the potential effects of separation and divorce on children,
alternatives to going to court, the litigation process, as well as other local services available
192
Action Committee, Legal Services Report, supra note 14 at 6; Law Commission of Ontario, supra note 2
at 19; Macfarlane, The National Self-Represented Litigants Project, supra note 2 at 116.
193
Action Committee, Legal Services Report, supra note 14 at 5-6; Action Committee, Court Processes
Simplification Report, supra note 15 at 11; Law Commission of Ontario, supra note 2 at 60; Action
Committee, A Roadmap for Change, supra note 2 at 13.
194
Law Commission of Ontario, supra note 5 at 60.
195
Salem & Saini, supra note 2 at 133.
196
See Family Law Rules, O.Reg 114/99 [Family Law Rules], r 8.1; See also Farrow & Jacobs, supra note
12 at 192.
197
Ontario, “Family Justice Services” (last modified 12 August 2021), online:
<www.ontario.ca/page/family-justice-services#section-2> [Ontario, Family Justice Services].
to families.
198
However, the MIP can only be attended by those who are a part of a family
litigation file and therefore not available to those seeking legal advice and information at
the outset of their dispute. On the other hand, the FLIC can be attended by any member of
the public where they can obtain the same information available at the MIP program.
199
Second, in response to the recommendation for a single entry portal for accessing legal
information, Community Legal Education Ontario (“CLEO”) has expanded and
modernized the Steps to Justice website.
200
This was done in collaboration with a wide
range of key stakeholders
201
and provides the public with legal information on common
legal problems, guided pathways for different areas of law including family law, and assists
with the drafting of court forms.
202
It also offers the public information that is easily
accessible, accurate and simple to understand for those seeking assistance in understanding
their family law problem.
B. THE PUBLIC’S ACCESS TO ALTERNATIVE DISPUTE RESOLUTION SERVICES
Not every family law dispute requires court intervention. In Ontario, there are a variety of
ADR services available to assist families in resolving their family law matter without going
to court. Examples of these are negotiation with or without a lawyer, mediation, private
arbitration and collaborative law. The availability of ADR services to the public promotes
access to justice by providing families with alternatives to managing and resolving their
dispute without the need to enter a courtroom.
Rather than going to court, ADR services give families more control over the process and
outcome of their dispute and can be tailored to the individual needs of both parties. For
198
Ibid.
199
Ontario, Family Justice Services, supra note 48.
200
CLEO Connect, “About CLEO Connect” (last visited 21 August 2021), online:
<https://cleoconnect.ca/what-we-do/>.
201
This includes the Ministry of the Attorney General, Legal Aid Ontario, community legal clinics, the Law
Society of Ontario, the Superior Court of Justice, the Ontario Court of Justice, The Action Group on Access
to Justice.
202
“Steps to Justice” (last visited 21 August 2021), online: <https://stepstojustice.ca/>.
example, ADR services can allow for more breaks throughout the day than in court and can
be scheduled around the availability of the parties. It also allows parties to select a neutral
intermediary with expertise in the specific family issues in dispute, as opposed to having
no choice in the judge if they go to court. Another important aspect of using an ADR service
is the ability to come up with a solution that best meets the needs of everyone involved,
especially the children. Individuals who use an ADR service can be more creative and have
greater input in the final settlement rather than receiving a final order from a judge after a
lengthy trial. The Action Committee believes that ADR services can help make the family
justice system more affordable, fair, and efficient.
203
This can be accomplished by
refocusing the families' attention on their needs and interests rather than the rigid rules and
positions commonly found in the courtroom.
204
1. Suggestions for Improvements to Alternative Dispute Resolution Services
Raising public awareness of the various ADR services available can make the family justice
system more accessible. It was found that the majority of the public is unaware of ADR
services available that can assist them with their family law dispute. According to Dr. Julie
Macfarlane’s National Self-Represented Litigants Project, “[a] significant number of SRL’s
say that they were never offered mediation, and/or do not know what it is.”
205
Dr.
Macfarlane recognized that “[t]his is a clear gap that needs to be urgently addressed.”
206
One way to address this concern is through the suggestion of triaging families at the outset
of their family dispute with the assistance of Case Assessment Coordinators (“CAC”).
207
This approach is similar to the LCO’s recommendation of “front end loading the system,”
in which triaging can assist the public by providing information early in their dispute about
203
Action Committee, Court Processes Simplification Report, supra note 15 at 13.
204
Rabinovih-Einy & Katsh, supra note 11 at 641.
205
Macfarlane, The National Self-Represented Litigants Project, supra note 2 at 12.
206
Ibid.
207
Landau, supra note 2 at 7, Bala, supra note 35 at 279; Czutrin, supra note 35 at 326; Cromwell, supra
note 2 at 45; Action Committee, Beyond Wise Words, supra note 4 at 7, 41; Law Commission of Ontario,
supra note 2 at 64, 71.
the different pathways available to best suit their needs, including an ADR service. Triaging
can also assist in determining how a case should be handled, particularly ones which may
involve power imbalances or family violence.
Aside from receiving legal information online, people can also obtain legal information
from lawyers. However, many lawyers continue to be focused on bringing matters to court
rather than making use of an ADR service. The Action Committee recognized that the
traditional role of the “zealous advocate” is too limited for the varying demands of family
law practice.
208
As a result, many scholars have suggested culture change as one of the
ways to enhance access to justice, proposing that family professionals should move away
from a court-centered perspective to a more collaborative approach.
209
The Action
Committee declared “[t]he motto might be: court if necessary, but not necessarily court.”
210
Dr. Macfarlane recently labelled this change in perspective as the “new lawyer,”
211
which
considers an alternative model of lawyering practice but uses the same expertise and
understanding of traditional legal practice.
212
The “new lawyer” is evolved in a way that
advances the best possible result for the client through settlement, using amicable dialogue,
encouragement, and relationship management.
213
Another way to improve access to family justice through the use of ADR services is to
incorporate technology. This can likely reduce costs to the public while potentially serving
a larger number of people. It has been suggested by many that ADR services be expanded
to include Online Dispute Resolution (“ODR”) to achieve this goal.
214
ODR refers to a
208
Action Committee, Beyond Wise Words, supra note 4 at 30.
209
See e.g. Bala, supra note 35 at 274, 279, 313-314; Action Committee, Beyond Wise Words, supra note 4
at 3, 24- 25; See also, Hryniak v. Mauldin, 2014 SCC 7 at paras 2, 28, 32.
210
Action Committee, A Roadmap for Change, supra note 2 at 11.
211
Julie Macfarlane, “The Evolution of the New Lawyer: How Lawyers are Reshaping the Practice of Law”
(2008) 1 J Disp Resol 61.
212
Ibid at 63-64.
213
Ibid.
214
Ontario, Putting Justice Within Reach, supra note 2 at 14; CBA, Reaching Equal Justice, supra note 2 at
422-23; Action Committee, A Roadmap for Change, supra note 2 at 16; The Canadian Bar Association, “No
variety of ADR services that use technology to communicate and resolve a dispute virtually
without the requirement of the parties being physically present together.
215
In 2013, the
Action Committee recognized the importance of ODR in the court system, acknowledging
that it may open up a number of opportunities for easily accessible and low-cost dispute
resolution.
216
They recommended that ODR services should also be used where suitable
and practicable.
217
The Ontario government also discussed the use of ODR in its 2016
report, recommending that this type of technology would ensure that the justice system is
designed in a way that is relevant to Ontarians for years to come.
218
In 2019, the Law
Society of Ontario Technology Taskforce recommended the use of ODR platforms as it can
provide the public with an array of legal services including predicted outcomes of their
legal matter to assist in facilitating mediation.
219
When technology such as ODR platforms
are properly used, it can substantially improve access to justice by reducing barriers of cost,
time and delay in the process.
220
2. Recent Modifications to Ontario’s Alternative Dispute Resolution Services
In response to the call for more people to take advantage of ADR services, the federal
government enacted legislation requiring legal professionals to advise their clients about
ADR services available to them. As of March 1, 2021, amendments to the federal Divorce
Turning Back: CBA Task Force Report on Justice Issues Arising from COVID-19” (February 2021), online
(pdf):
<www.cba.org/CBAMediaLibrary/cba_na/PDFs/Publications%20And%20Resources/2021/CBATaskForce
.pdf> [CBA, No Turning Back] at 8.
215
Government of Canada, Department of Justice, “Dispute Resolution Reference Guide: Online Dispute
Resolution” (August 2012), online : <www.justice.gc.ca/eng/rp-pr/csj-sjc/dprs-
sprd/res/drrgmrrc/10.html#i>.
216
Action Committee, Legal Services Report, supra note 14 at 14-15.
217
Action Committee, A Roadmap for Change, supra note 2 at 6.
218
Ontario, Putting Justice Within Reach, supra note 2 at 14.
219
Will Morrison, “Technology Task Force, Update Report” (November 2019), online (pdf): Law Society of
Ontario
<lawsocietyontario.azureedge.net/media/lso/media/about/convocation/2019/technologytaskforcereport-
en.pdf> [Morrison] at 13.
220
Michael J Wolf, "Collaborative Technology Improves Access to Justice" (2012) 15:3 NYU J Legis & Pub
Pol'y 759 [Wolf] at 776.
Act,
221
provincial Family Law Act
222
and Children’s Law Reform Act
223
came into effect
where family legal advisers are now required to advise their clients about the variety of
ADR services available, referred to in the legislation as “family dispute resolution
processes.” Family legal advisers are also required to encourage clients to attempt to
resolve their matters outside of court, unless it would clearly not be appropriate to do so.
224
To assist those who cannot afford to use ADR services, the Ontario Ministry of the Attorney
General has provided free family mediation services at all of Ontario’s courthouses.
225
However, this service is only available for parties who have already filed a court action,
and only for those who have a court appearance that day.
226
Off-site family mediation
services are also available for a fee based on the income of the parties and the number of
children.
227
Additionally, effective May 14, 2021, the Superior Court of Justice developed a Binding
Judicial Dispute Resolution pilot project in the Simcoe, Muskoka and Cornwall Superior
Court of Justice, Family Court Branch as well as the Superior Courts in the Northwest and
Northeast regions.
228
This project was designed to offer family law litigants with an easier
approach to reaching a final resolution, as well as assist in addressing significant backlogs
in family cases caused by COVID-19.
229
While this project requires parties to commence a
221
Divorce Act, RSC 1985, c 3 (2nd Supp) [Divorce Act].
222
Family Law Act, R.S.O. 1990, c. F.3 [Family Law Act].
223
Children’s Law Reform Act, RSO 1990, c C.12 [Children’s Law Reform Act].
224
Children’s Law Reform Act, supra note 74 at s 33.2(2); Divorce Act, supra note 72 at s 7.7(2); Family Law
Act, supra note 73 at s 47.3(2); See also, Moving Ontario Family Law Forward Act, 2020, S.O. 2020, c. 25.
225
Ontario, Family Justice Services, supra note 48.
226
Ibid; Ontario Court of Justice, “COVID-19: Scheduling of Family Matters in the Ontario Court of Justice
(last modified 21 April 2021), online: <www.ontariocourts.ca/ocj/covid-19/archives/covid-19-schedulingof-
family-matters-in-the-ontario-court-of-justice-april-8-2021-revised-april-21-2021/>.
227
Ontario, Family Justice Services, supra note 48.
228
Chief Justice Geoffrey Morawetz, “Practice Advisory Concerning the Superior Court of Justice’s Binding
Judicial Dispute Resolution Pilot Projects” (10 May 2021), online: Ontario Superior Court of Justice
<www.ontariocourts.ca/scj/practice/binding-judicial-dispute-resolution-pilot/> [Morawetz, Binding Judicial
Dispute Resolution Pilot Projects].
229
Ibid.
court action and file other necessary court documentation in support of their position,
230
it
can broaden the type of ADR services available to those with less complex family law cases
but have difficulty reaching a final resolution on their own.
C. SIMPLIFYING THE PUBLIC’S ACCESS TO THE FAMILY COURT SYSTEM
Simplifying the family court system can also improve access to justice. Access to legal
services and the court is a critical component of access to justice.
231
To have an effective
court system, it must function in a fair, resourceful and balanced manner to meet the needs
of the public.
232
Nonetheless, the current family court system is becoming more
complicated and more unbalanced in relation to the needs of the public and the disputes
before it.
233
In its final report, the Action Committee stated that
“[e]veryday legal problems need everyday solutions that are timely, fair and
costeffective. Procedures must be simple and proportional for the entire system to
be sustainable. To improve the system, we need a new way of thinking that
concentrates on simplicity, coherence, proportionality and sustainability at every
stage of the process.”
234
In response, family law scholars have advocated for the expansion of the Family Court of
the Superior Court of Justice, also known as the Unified Family Court (“UFC”), across all
of Ontario, as well as the use of technological innovations to create a modern court system
that meets the needs of Ontarians today.
1. Recommendations for Reform to the Family Court System
230
Ibid.
231
Action Committee, Court Processes Simplification Report, supra note 15 at 2.
232
Ibid at 1.
233
Action Committee, A Roadmap for Change, supra note 2 at 8.
234
Ibid.
i. Unified Family Court
Many scholars agree that the UFC will assist with the access to justice crisis.
235
For
Ontarians, family law includes both federal and provincial legislation; thus, in the absence
of the UFC, jurisdiction over family cases in Ontario is split between the Superior Court of
Justice and the Ontario Court of Justice.
236
The UFC is a court which hears all family law
disputes in one forum, regardless of what federal or provincial claims are being sought.
237
With the increase in complex and high-conflict family matters before the court, expanding
the public’s ability to access the court through the UFC can help to simplify the family
court system and make it easier for families to navigate. This can also assist in reducing the
amount of additional conflict between the parties and provide healthier long-term
resolutions for families and their children.
238
Case management is a unique feature of the UFC that makes the court system more
accessible. This is where the same judge presides over all stages of a court matter, including
conferences and motions, meaning which means "[o]ne judge for one family."
239
Case
management can provide judges with an influential tool to assist in improving access to
justice by facilitating more settlement and providing the public with more accountability
and consistency within the family court system.
240
This is due to the fact that judges in the
UFC are specialized in family law prior to being appointed to the bench and therefore have
235
See Bala, supra note 35 at 301; Czutrin, supra note 35 at 319 to 320; Action Committee, Beyond Wise
Words, supra note 4 at 7, 8, 46-48; Landeau, supra note 2 at 17; Law Commission of Ontario, supra note 2
at 29; David M. Steinberg, "Developing a Unified Family Court in Ontario” (1999) 37:4 Family &
Conciliation Courts Rev 454; Barbara A. Babb & Judith D. Moran, Caring for Families in Court: An
Essential Approach to Family Justice (Abingdon, Oxon; New York, NY: Routledge, 2019) at 6.
236
Ontario Superior Court of Justice, “Family Proceedings” (last visited 23 August 2021) online:
<www.ontariocourts.ca/scj/family/> [Ontario Superior Court of Justice, Family Proceedings].
237
Department of Justice Canada, “The Unified Family Court Summative Evaluation Final Report” (March
2009), online (pdf): Evaluation Division, Office of Strategic Planning and Performance Management <
www.justice.gc.ca/eng/rp-pr/cp-pm/eval/rep-rap/09/ufc-tuf/ufc.pdf> [Department of Justice Canada] at 1.
238
Ibid.
239
Bala, supra note 35 at 298; See also Landau, supra note 2 at 5, 15; Family Law Rules, supra note 47 at r
39(9).
240
Action Committee, Court Processes Simplification Report, supra note 15 at 8.
specific experience and knowledge in helping families navigate the court system.
241
Additionally, high conflict and high risk family cases use a disproportional amount of
justice system resources.
242
A specialized judge can identify these cases early on and
provide a greater degree of supervision and accountability to better promote safety and
settlement.
243
The UFC can help reduce the amount of time it takes to resolve a family
matter, and as a result, reduce costs for families across
Ontario.
244
ii. Use of Technology
Technology can improve access to family justice because it is more efficient, cost effective
and user-friendly.
245
While the advancements of technology continue to change modern
life, many have observed that these technological developments are by-passing the justice
system.
246
As a result, scholars have recommended four ways that technology could be used
to improve access to the family court system.
Virtual court appearances are the most prominent recommendation for improving access to
family law justice through the use of technology.
247
Virtual appearances save the cost and
inconvenience of travelling to court as people can access the court system from the comfort
of their own home. This is especially important for disabled litigants, those living in remote
241
Action Committee, A Roadmap for Change, supra note 2 at 19.
242
Bala, supra note 35 at 299.
243
Department of Justice Canada, supra note 88 at 36.
244
Action Committee, Court Processes Simplification Report, supra note 15 at 8.
245
Ibid at 5; Darin Thompson, "Creating New Pathways to Justice Using Simple Artificial Intelligence and
Online Dispute Resolution" (2015) 2:1 IJODR 4 at 8.
246
See e.g. Action Committee, Legal Services Report, supra note 14 at 3; Action Committee, Court Processes
Simplification Report, supra note 15 at 5; Action Committee, A Roadmap for Change, supra note 2 at 16;
Action Committee, Beyond Wise Words, supra note 4 at 55; Ontario, Putting Justice Within Reach, supra
note 2.
247
Ontario, Putting Justice Within Reach, supra note 2 at 11; Action Committee, Court Processes
Simplification Report, supra note 15 at 7 - 8; Action Committee, A Roadmap for Change, supra note 2 at 17;
Wolf, supra note 71 at 785; Bailey, Burkell & Reynolds, supra note 2 at 201.
arears, and the poor.
248
It can also increase the safety of family litigants, including those
who have been subject to domestic violence.
249
Many scholars have also recommended simple and interactive court forms to improve
access to justice.
250
This includes forms that use plain language, a question and answer
approach, or tick the box.
251
Many family litigants rely on court forms for guidance and
advice on what information and documentation they must provide when filing a family law
claim. However, many of the family law forms are difficult to understand and complete,
resulting in barriers to those who do not have the assistance from a lawyer.
252
Simplified,
interactive court forms can save money and time for both the court and litigants by assisting
the public in properly completing the applicable court forms, resulting in fewer rejections
from the court staff.
253
This can help empower family litigants and give them confidence
when navigating the family court system.
Electronic filing of court documents is another recommendation to improve access to
justice.
254
Electronic filing minimizes or eliminates in-person attendances and provides
some of the same accessibility benefits as virtual hearings.
255
It no longer requires a person
248
Bailey, Burkell & Reynolds, supra note 2 at 200- 201; CBA, No Turning Back, supra note 65 at 9.
249
Bailey, Burkell & Reynolds, supra note 2 at 200; See also Wolf, supra note 71 at 785.
250
See, e.g. Macfarlane, The National Self-Represented Litigants Project, supra note 2 at 9; Law
Commission of Ontario, supra note 2 at 22; Landau, supra note 2 at 15; Action Committee, Court Processes
Simplification Report, supra note 15 at 5; Action Committee, Beyond Wise Words, supra note 4 at 49-50.
251
Action Committee, Court Processes Simplification Report, supra note 15 at 6; Action Committee, Beyond
Wise Words, supra note 14 at 49; Macfarlane, The National Self-Represented Litigants Project, supra note 2
at 9.
252
Macfarlane, The National Self-Represented Litigants Project, supra note 2 at 9.
253
Ibid; Bailey, Burkell; & Reynolds, supra note 2 at 195; Action Committee, Court Processes Simplification
Report, supra note 15 at 5.
254
See, e.g., Action Committee, A Roadmap for Change, supra note 2 at 16; Ontario, Putting Justice Within
Reach, supra note 2 at 3; CBA, No Turning Back, supra note 65 at 9.
255
Action Committee, Court Processes Simplification Report, supra note 15 at 6-7.
to take time away from their work and family to attend court in person for things that could
be dealt with online.
256
Another recommended measure to improve access to justice is real time court orders.
257
Prior to the COVID-19 pandemic, there was no mechanism in place that allowed judges to
create and sign court orders on the spot, unless the order was anticipated and prepared in
advance by counsel. Hodson recognized the benefits from real time court orders, including
significantly reducing the time the court spends on approving draft orders,
258
as well as the
ability to standardize the wording of court orders to ensure consistency.
259
2. Improvements Made to Simplify the Family Court System in Ontario
Prior to the COVID-19 pandemic, the use of technology in the family justice system was
slow and sparse. The placement of Wi-Fi in each of the courthouses across Ontario did not
begin until the fall of 2017, and was not expected to be completed until 2019.
260
Almost all
court appearances, as well as the issuing and filing of court documentation, took place in
person, and paper disclosure was still widely used. In 2018, Ontario introduced online filing
of joint divorce applications.
261
That same year, the Ministry of the Attorney General also
partnered with CLEO to develop online interactive Guided Pathways to Family Court
Forms which allowed users to generate family court forms simply by answering a series of
online question and upon completion, the software organizes the answers given and enters
256
Ontario, Putting Justice Within Reach, supra note 2 at 3.
257
Action Committee, A Roadmap for Change, supra note 2 at 16-17; Action Committee on Access to Justice
in Civil and Family Matters, “Colloquium Report” (June 2014), online (pdf): Canadian Forum on Civil
Justice <www.cfcj-fcjc.org/sites/default/files//docs/2014/ac_colloquium_web_FINAL.pdf> at 9.
258
David Hodson, “The Role, Benefits, and Concerns of Digital Technology in the Family Justice System”
(2019) 57:3 Fam C Rev 425 at 426.
259
Ibid at 427.
260
Ontario, Putting Justice Within Reach, supra note 2 at 12.
261
Ontario Bar Association, “Update: The Online Filing Service for Joint Divorce Applications is Available
as of November 19, 2018” (19 November 2018), online:
<www.oba.org/Sections/FamilyLaw/Resources/Resources/Update-The-Online-Filing-Service-for-Joint-
Divor>.
it onto the appropriate form.
262
This program has since been further expanded to include
conference briefs, completing net family property statements, and making or responding to
a motion, just to name a few.
263
Following Chief Justice Morawetz's announcement in March 2020 that most in-person
court operations in Ontario would be suspended, the family court system underwent
significant technological change.
264
To ensure that social distancing restrictions were
adhered to, most family court appearances were heard virtually, including motions,
conferences, and trials.
265
Court documents could also be commissioned and signed
electronically,
266
as well as filed through specific courthouse e-mail addresses rather than
in person.
267
As a result of the suspension of in-person court operations, significant delays were caused
due to the inability to access physical family files. A family law matter could not be handled
properly if the files were not accessible. Consequently, many litigants were forced to scan
and email copies of their court documents to the courthouse in order for judges to access
files remotely. An online document exchange system therefore became necessary. On July
29, 2020, the Ministry of the Attorney General announced the use of Thomson Reuters
262
Ibid; Action Committee, Beyond Wise Words, supra note 4 at 49-50.
263
Steps to Justice, “About Family Law Guided Pathways” (last visited 23 August 2021), online:
<stepstojustice.ca/guided-pathways/family-
law/?gclid=cjwkcajwnpoebha0eiwa609refwz8bjmlcmgbm3orjzxsc6w-b_24dr4pfdkitf9k3cjle28-
3q7bocpeaqavd_bwe>.
264
Morawetz, Notice to the Profession, supra note 7.
265
Morawetz, Notice to the Profession, supra note 7.
266
Administering Oath or Declaration Remotely, O. Reg. 431/20; See also, Law Society of Ontario,
“Remote Commissioning” (last visited 23 August 2021) online: <lso.ca/lawyers/practice-supports-
andresources/topics/the-lawyer-client-relationship/commissioner-for-taking-affidavits-and-
notarypubl/l%E2%80%99attestation-a-distance>.
267
Morawetz, Notice to the Profession, supra note 7; Tania Sourdin, Bin Li & Donna Marie McNamara,
“Court Innovations and Access to Justice In Times Of Crisis” (2020) 9 HPT 447 [Sourdin, Li & McNamara]
at 449.
CaseLines (“CaseLines”) in the Ontario Superior Court of Justice,
268
which allows for
litigants and the court to upload and access their specific family law file online. On August
10, 2020, the CaseLines pilot project began in Toronto, including family matters other than
child protection cases or cases that were subject to a sealing order.
269
As of April 19, 2021,
the use of CaseLines was expanded to Central East and Central South judicial regions, with
a continued province-wide rollout to be expanded throughout Spring and early Summer
2021.
270
Throughout the pandemic, the Ontario Family Law Rules
271
have been amended several
times to accommodate the technological advancements within the family justice system.
This includes giving the courts discretion over the use of telephone or video technology in
a case,
272
permitting electronic filing of court documents through the Ontario Justice
Services website,
273
as well as permitting electronic signatures on court documents.
274
Furthermore, the Attorney General for Ontario, Doug Downey, recently wrote a letter to
the Federations of Ontario Law Associations Family Law Committee, asking for input on
the proposal to create new standard orders regarding financial disclosure requirements in
family law matters.
275
It is being proposed that once a pleading is issued, standard financial
268
Memorandum from Chief Justice Geoffrey B. Morawetz to Bar and Legal Associations re: CaseLines (29
July 2020), online: <www.ontariocourts.ca/scj/notices-and-orders-covid-19-supplementary-memoaugust-6-
2020/>.
269
Chief Justice Geoffrey B. Morawetz, “Supplementary Notice to the Profession and Litigants in Civil and
Family Matters Regarding the Caselines Pilot, E-Filing, and Fee Payment” (last modified 17 June 2021)
online: Ontario Superior Court of Justice <www.ontariocourts.ca/scj/notices-and-orders-
covid19/supplementary-notice-september-2-2020/>.
270
Law Society of Ontario, “Frequently Asked Questions: CaseLines” (last modified 6 July 2021) online:
<lso.ca/lawyers/practice-supports-and-resources/practice-area/civil-litigation/caselines-frequently-
askedquestions#3-what-is-the-estimated-timeline-for-rolling-out-caselines—7>.
271
Family Law Rules, supra note 47.
272
Ibid at r 1(7.2)(i.1), 1(7.3.1).
273
Ibid at r 1.1; See also, Ontario, Log In, (last visited 23
August 2021) online:
<www.justiceservices.jus.gov.on.ca/MyAccount/screens/OneKey/login.xhtml?lang=EN>.
274
Family Law Rules, supra note 47 at r 1.1(1).
275
Letter from Attorney General Doug Downey to Federations of Ontario Law Associations (11 May 2021).
disclosure orders would be made automatically by the clerk of the court in every case in
the UFC, excluding child protection cases and applications for simple and joint
divorces.
276
Shortly following the World Health Organization’s announcement of the COVID-19
becoming a global pandemic, the Canadian Bar Association (“CBA”) created a COVID19
Task Force to evaluate the urgent and progressing issues of the delivery of legal services
caused by the COVID-19 pandemic.
277
On February 17, 2021, the CBA’s COVID-19 Task
Force released their final report which identified ways in which the justice system could
reposition how legal services could be provided during and after the pandemic to ensure it
remains accessible, current and dedicated to focusing on those pursuing justice.
278
Two
important themes emerged from this report. First, there will be no going back to the way
the justice performed prior to the pandemic. Second, the innovative technologies and
processes must be implemented to improve access to justice and not inadvertently prevent
it.
279
After examining recent reforms to the family justice system, particularly those
implemented in response to the COVID-19 pandemic, the changes appear to have
positively responded to earlier suggestions to make the family justice system more
accessible. However, it must be determined whether the changes made in creating the
current Ontario family justice system were the fundamental and bold changes required to
meet the expanded vision of access to justice identified by many.
IV. THE PRESENT ONTARIO FAMILY JUSTICE SYSTEM
So far, this paper has examined the key recommendations made to make the family justice
system more accessible, as well as the changes implemented in response to these
276
Ibid.
277
CBA, No Turning Back, supra note 65 at 3.
278
Ibid at 6 - 7.
279
CBA, No Turning Back, supra note 65 at 8.
recommendations. This section will consider whether the current system has resulted in
more meaningful access to justice, as well as what the recent changes to the system mean
for access to family law justice initiatives moving forward.
A. VALUABLE LEGAL INFORMATION AVAILABLE TO THE PUBLIC
The new and improved legal information services, such as the MIP, the FLIC, and
enhancements to the Steps to Justice website, allow for accurate, relevant and clear legal
information to be provided early in a family law dispute.
280
However, whether people are
aware of the existence of these services and whether they actually assist those seeking
information must be examined.
One disadvantage of the MIP and the FLIC is that they are only available at the local
courthouse. As a result, until they enter the courthouse, the public may not be aware these
services exist. While information about these programs are available on the Ontario
government website, it is difficult to find unless the individual knows exactly what to look
for.
Another concern is whether the information provided at the MIP and the FLIC is actually
useful. Farrow and Jacobs recently reviewed the Evolving Justice Services Research
Project (“EJSRP”) which investigated the effect of legal information provided to those in
the Ontario and British Columbia justice systems.
281
The project evaluated the effectiveness
of legal information in assisting people with every day legal problems over a three-year
period.
282
The Ontario MIP’s were part of this study. After review of the results from the
study and comments by its participants, Farrow and Jacobs found that individuals with
legal issues follow different ways to justice and therefore specific information is needed at
various points along the way.
283
They ultimately concluded that changes to the MIP, such
280
Farrow & Jacobs, supra note 12 at 195.
281
Farrow & Jacobs, supra note 12 at 192.
282
Ibid.
283
Ibid at 193.
as to the script and delivery of information to include videos and scenario-based role-
playing, are required in order for it to adequately help the users of family legal services.
284
While the improvements to the Steps to Justice website have undoubtedly provided the
public with easy-to-understand legal information, the public’s awareness of the availability
of these services also remains an issue.
285
If users of the family justice system do not have
access to the available legal information, it is as if the information did not exist at all. It is
therefore recommended that these services be promoted more effectively.
One cost-effective way to promote these services can be to inform all family lawyers about
the existence of these services so that they can direct both potential and existing clients to
it. Those who call into law offices seeking assistance from a lawyer but ultimately find out
they cannot afford to retain one can be directed to the Steps to Justice website for guidance.
Existing clients can also benefit from these services, which provide a solid foundation of
common legal concepts and terms. This allows the lawyer and client to spend more time
together, focusing on the complex and unique challenges of their case rather than simple
terms and information readily available online. This can also save the client money on legal
fees by allowing them to ask specific questions about their case and engage in more in-
depth discussions with their lawyer. Clients who receive specialized knowledge and
support from their lawyer may avoid the feeling of wasting money on legal fees.
The current infrastructure for the public's ability to access reliable, accurate, and easy-
tounderstand legal information is available as a result of recent changes. However,
following the results from the EJSRP, it is evident that more empirical research is needed
to determine whether the current informational initiatives actually provide the public with
what is needed to observe meaningful access to justice in Ontario.
284
Ibid at 202.
285
Landau, supra note 2 at 7-8.
B. EXISTING ALTERNATIVE DISPUTE RESOLUTION INITIATIVES
The federal and provincial governments are taking positive steps toward making the family
justice system more accessible with the use of ADR services. This can be seen through the
recent amendments to the Divorce Act,
286
Family Law Act
287
and Children’s Law Reform
Act.
288
Placing greater responsibility on legal practitioners for informing their clients about
the various ADR services available to them improves access to justice.
However, numerous challenges remain unaddressed by the new legislative initiatives,
preventing meaningful access to justice from being fully achieved. This includes the
inability to reach everyone who wishes to access the family justice system. While the
objectives behind mandating lawyers to advise their respective clients about the ADR
services is clear, the difficulty is that at least 50% of people continue to choose to represent
themselves.
289
As a result, not everyone can afford to seek legal advice from a lawyer, and
if the public does not seek legal advice, they are less likely to receive information about
ADR services that can assist them.
There is also no guidance from the governments regarding what information, and how
much information, the lawyer should provide when advising clients about ADR services.
Some lawyers may simply ignore this requirement, or provide very little information about
the services in order for clients to understand whether it will truly help them. Supplying
lawyers with handouts or a link to the government website to provide to their clients can
assist in ensuring the public receives consistent information about the ADR services that
are available.
Another challenge is the cultural shift that will be required from the family bar to increase
its use of ADR services. It is acknowledged that cultural change in the legal profession does
286
Divorce Act, supra note 72.
287
Family Law Act, supra note 73.
288
Children’s Law Reform Act, supra note 74.
289
Macfarlane, The National Self-Represented Litigants Project, supra note 2; Action Committee, A
Roadmap for Change, supra note 2 at 4.
not occur overnight. Scholars have proposed that reform begin at the law school level, with
the goal of developing negotiation skills early on in a way that promotes collaborative
partnership with all parties involved.
290
Creating a collaborative foundation for all family
lawyers early on in their education can assist in making a more meaningful family justice
system. However, if law schools do not require ADR training as part of its curriculum, then
the development of the “new lawyer” will be limited to only those who are interested. Until
then, family law practitioners will need to take the lead in advancing access to justice
initiatives.
291
Additionally, raising public awareness of the various ADR services available does not
change the fact that these services continue to be expensive for the vast majority of people.
Although the government has responded by providing free mediation at the courthouse,
these services are only available to people who have already filed a court action and are
only available on the day of a court date. While it is understandable that the government
cannot provide free mediation to everyone, only providing free mediation to those who
initiate a court action is illogical and counter-intuitive. It has been recognized that middle-
income earners require the most assistance,
292
therefore free mediation should be made
available to them without the need to initiate litigation.
The recent rise in virtual ADR services as a result of the COVID-19 pandemic can also
assist with the issue of cost. This has allowed for parties to retain mediators or arbitrators
from different cities with possibly cheaper rates and not having to pay for travel fees. As a
result, virtual ADR has provided an accessible justice system by responding appropriately
to the rise in family disputes caused by the COVID-19 pandemic by modernizing the way
ADR services are provided to the public. It is likely that the virtual nature of ADR services
will remain after the COVID-19 pandemic has ended.
290
Action Committee, A Roadmap for Change, supra note 2 at 15; Semple & Bala, supra note 30 at 17.
291
Action Committee, Court Processes Simplification Report, supra note 15 at 20.
292
Trebilcock, Duggan & Sossin, supra note 1.
On the other hand, the requirements to participate in the new Binding Judicial Dispute
Resolution pilot project do not result in a more accessible justice system. While the project's
intentions are good, the reality is that it cannot assist the vast majority of those in the family
court system who are in need of the project due to the unrealistic requirements that must
be met in order to be eligible. For example, the requirements include less complex cases
that do not involve witnesses other than the parties, where necessary financial disclosure
or other information has already been exchanged and where the parties substantially agree
on the facts.
293
Furthermore, the government has stated that due to time constraints, cases
requiring more than two to three hours of hearing time are not appropriate for the pilot
project.
294
Those who are eligible for the project are unlikely to be involved in litigation in
the first place.
Additionally, despite the recommendation to expand ADR services to include ODR,
nothing has yet been implemented in Ontario family law. While the CBA Task Force has
recently stated that any venture into online platforms in family law matters is difficult,
295
it
is still critical that ODR be considered as an additional family law ADR service in order to
help make the family justice system more accessible. The advancement of ODR in family
law may become necessary in order for the system to remain accessible to the public due
the reliance on technology in all aspects of their lives. It is acknowledged that some family
issues may be too complex to be dealt with through ODR, and that some people may lack
the technology or ability to fully participate in a digital justice system.
296
It is therefore
critical that barriers to an ODR service be identified and addressed before it is implemented
within the family justice system.
293
Morawetz, Binding Judicial Dispute Resolution Pilot Projects, supra note 79.
294
Ibid.
295
CBA, No Turning Back, supra note 65 at 15.
296
CBA, No Turning Back, supra note 65 at 15.
C. A MODERN FAMILY COURT SYSTEM
The recent changes to the family court system have made it easier to use and more
accessible. This includes the expansion of the UFC, which now has 25 locations across
Ontario.
297
The UFC and its case management function has fundamentally shifted the
judiciary’s role from adjudicative to settlement and management oriented. This has the
potential to greatly benefit those involved in the court system by reducing delays and
increasing savings for family litigants by assisting in narrowing issues and settling cases as
quickly as possible.
The most significant change to the family court system is the use of virtual court
appearances in all or any part of a family case, at the court’s sole discretion.
298
Once the
COVID-19 pandemic has passed, virtual court appearances should not be used for the entire
court process. Virtual appearances are appropriate for procedural, uncontested, and less
complicated matters. This includes first appearances before a clerk, speak-to court dates
and trial management conferences where the only issues being decided are the scheduling
of future court dates and timelines for production of documentation. Virtual appearances
are also appropriate for uncontested trials, short and urgent motions, and case conferences
as only procedural or consent orders can be made. Having these matters heard virtually
can reduce costs for family litigants because they no longer have to take a full day off from
work to attend.
The option of participating in a settlement conference virtually or in person should still be
made available on a case-by-case basis. This is because some cases have progressed more
quickly than others. Some cases, for example, are still awaiting significant financial
disclosure at the settlement conference stage, while others are ready for trial. Cases that are
trial ready at the settlement conference stage may benefit more from being held inperson
rather than virtually due to the formality and trial-like atmosphere that can be provided in
297
Ontario Superior Court of Justice, Family Proceedings, supra note 87.
298
Family Law Rules, supra note 47 at r 1(7.2)(i.1), 1(7.3.1).
the courthouse. This may give the parties a better idea of what a trial is like and assist in
the resolution of the matter.
The option of participating in a trial virtually or in-person should also be available on a
case-by-case basis. Trials are often days in length, contain numerous witnesses, sometimes
expert witnesses, and require substantial amount of documentary evidence to be exchanged.
Virtual trials can assist with these challenges, by allowing the court to better assess
credibility of witnesses more closely at a screen and accommodate schedules of the
witnesses.
299
Also, CaseLine’s has greatly assisted the court and litigants in managing the
heavy document load. However, some people can be uncomfortable with the technology
required, including navigating different screens and programs during a trial, and therefore
having a virtual trial may put those individuals at a disadvantage.
To ensure consistency across Ontario's family court system, the judiciary should establish
unified guidelines for what types of cases should be heard in person versus remotely.
Having guidance can help parties understand the circumstances under which the court will
or will not allow a matter to proceed remotely when making arguments to the court on the
issue. Providing the public with a court system that reliably and consistently manages each
family dispute will promote meaningful access to justice.
Despite not being mentioned in any of the prominent reports or scholarship on family law
reform, a document exchange system such as CaseLines can also facilitate access to justice
by improving the efficiency of the court. This reduces both costs and delays for the systems
users, and benefits marginalized members such as those living in rural communities and
SRL’s.
300
In Ontario family law, numerous documents must be exchanged, including
significant financial disclosure such as bank statements, income tax returns, and corporate
documentation. CaseLines has resulted in less paper and printing, easier access to files
online, and better management of evidence during motions and trials, whether held in-
299
CBA, No Turning Back, supra note 65 at 9.
300
Bailey, Burkell & Reynolds, supra note 2 at 195, 197-198.
person or virtually. It is unlikely that the court system will return to its previous method of
document exchange.
It is also hopeful that the suggestion for a standardized financial disclosure order at the
outset of each new family case will become a reality. This can help facilitate consistency
in the wording of orders across Ontario, and most importantly, reducing the amount of court
time required to bring motions against those who refuse to provide mandated financial
disclosure. This can also assist SRL’s in understanding their financial disclosure obligations
at the outset of their family case and prevent family professionals, such as opposing counsel
and judges, from providing legal advice to the SRL unintentionally.
D. CHALLENGES RESULTING FROM THE USE OF TECHNOLOGY
It is unrealistic to expect that increased use of technology in access to justice initiatives will
benefit all people affected by the family justice system.
301
Individuals who do not have
access to the internet or simply cannot afford it may be unable to participate in family
matters remotely, or may be forced to do so in public places where free Wi-Fi is available.
302
People with low literacy skills, mental disabilities, or visual or literacy impairments may
also have difficulty using technologies such as e-filing and interactive court forms.
303
Additionally, due to the substantial amount of confidential information relied on throughout
a family matter, the court’s recent reliance on the internet and virtual court appearances
raises privacy concerns.
304
Issues have also been raised about the virtual nature of the
courtroom, such as the potential loss of appreciation for the importance and civility of the
justice system, as well as the perceived disadvantages of advocating virtually rather than
in person.
305
These are just a few examples of how recent technological advancements in
the family justice system have shifted the public’s perception of the system in a negative
301
Ibid at 182; Morrison, supra note 70 at 15.
302
Bailey, Burkell & Reynolds, supra note 2 at 199.
303
Ibid at 196-197; Sourdin, Li & McNamara, supra note 119 at 450; Action Committee, Legal Services
Report, supra note 14 at 7.
304
CBA, No Turning Back, supra note 65 at 12-14.
305
CBA, No Turning Back, supra note 65 at 9- 10; Bailey, Burkell & Reynolds, supra note 2 at 203.
direction, with the public believing that access to justice is now out of reach for the majority
of people.
306
As a result, if the use of technology within the family justice system continues
to ignore the needs of the vulnerable community, it may exacerbate the access to justice
crisis.
307
CONCLUSION
The COVID-19 pandemic has unquestionably heightened the desire for an accessible
family justice system. It has also forced the opportunity to revolutionize the Ontario family
justice system in a way that can allow for real and substantial change. Ontario has moved
closer to having accurate, reliable, and easy-to-understand legal information as a result of
justice reforms through programs such as the MIP, the FLIC, and Steps to Justice website.
The recent federal and provincial legislative changes have also raised awareness of the
importance of providing ADR services to each family going through a separation. Most
importantly, the UFC and increased use of technology are simplifying and making the
family court system easier to use. However, while recent technological advancements have
brought us closer to improving access to justice in Ontario, drawbacks have emerged, and
certain vulnerable groups have remained disadvantaged.
The number of access to family justice initiatives continues to grow, and the practical
reform suggestions should compel key stakeholders and policymakers to pursue these
solutions forcefully. Nonetheless, the recommended courses of action for change needed to
make the Ontario family justice system accessible for all remains unfulfilled. The CBA
Task Force appropriately stated, “in the end, the secret of getting ahead is getting
started.”
308
Ontario has started, but positive change in its family justice system must
continue after the COVID-19 pandemic is over to ensure the most vulnerable people are
not left behind.
306
CBA, No Turning Back, supra note 65 at 6.
307
Action Committee on Access to Justice in Civil and Family Matters, “Tracking our Progress: Canada’s
Justice Development Goals in 2019” (2020), online (pdf): Canada’s Justice Development Goals
<www.justicedevelopmentgoals.ca/sites/default/files/canadajdg_report19_en_0.pdf> at 17.
308
CBA, No Turning Back, supra note 65 at 24.
INTRODUCTION
Access to family law justice has been identified as a crisis in the Canadian legal system for
decades.1 Over the years, prominent family law scholars have published numerous reports
and articles outlining recommendations to make the justice system more accessible,
responsive and user-focused.2 Among the reports was the 2013 final report of the national
Action Committee on Access to Justice in Civil and Family Matters (“Action Committee”),
which provided realistic and achievable goals for improving access to justice3 and a call to
action for “bold innovation” and a “fundamental overhaul” of the
5 Trevor C.W. Farrow, “What is Access to Justice?” (2014) 51:3 OsgoodeHall LJ 957 at 963, 965,
972; See also, Michael Trebilcock, Anthony Duggan & Lorne Sossin, Middle Income Access to Justice
(Toronto: University of Toronto Press, 2012) [Trebilcock, Duggan & Sossin] at 271; Beverley McLachlin,
“As Courts Reopen, Let’s Focus On Creating Equitable Access To Justice For All”, Globe and Mail (10 July
2020), online: < https://www.theglobeandmail.com/opinion/article-as-courts-reopen-lets-focus-on-
creatingequitable-access-to-justice/>.
6 See especially Action Committee on Access to Justice in Civil and Family Matters, “Access to Civil
& Family Justice: A Roadmap for Change” (October 2013), online (pdf): Canadian Forum on Civil Justice
<www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf> [Action Committee, A
Roadmap for Change]; Ontario, “Putting Justice Within Reach: The Foundation for User-Focused Justice in
Ontario” (29 November 2017), online (pdf): <www.ontario.ca/page/putting-justice-within-reach-plan-
userfocused-justice-ontario> [Ontario, Putting Justice Within Reach]; The Canadian Bar Association,
“Reaching Equal Justice Report, An Invitation To Envision and Act” (November 2013), online (pdf):
<lawsocietyontario.azureedge.net/media/lso/media/legacy/pdf/c/cba_equal_justice.pdf> [CBA, Reaching
Equal Justice Report]; Law Commission of Ontario, “Increasing Access to Family Justice Through
Comprehensive Entry Points and Inclusivity, Final Report” (February 2013), online (pdf):
<www.lcocdo.org/wp-content/uploads/2013/06/family-law-reform-final-report.pdf> [Law Commission of
Ontario]; The Action Group on Access to Justice, “Public Perceptions of Access to Justice in Ontario” (25
October
2016) online (pdf): The Access to Justice Research Network <theactiongroup.ca/wp-
content/uploads/2015/08/Abacus_TAG_Release_Oct14.pdf> [The Action Group on Access to Justice]; Dr.
Barbara Landau et al., “Creating a Family Law Process that Works: Final Report and Recommendations from
the Home Court Advantage Summit” (Paper delivered at Home Court Advantage Summit, 22-23 November
2009) [unpublished] [Landau]; Dr. Julie Macfarlane, “The National Self-Represented Litigants Project:
Identifying and Meeting the Needs of Self-Represented Litigants” (May 2013), online (pdf):
Representing Yourself Canada <representingyourselfcanada.com/wp-
content/uploads/2016/09/srlreportfinal.pdf> [Macfarlane, The National Self-Represented Litigants Project];
Peter Salem & Michael Saini, "A Survey of Beliefs and Priorities about Access to Justice of Family Law: The
Search for a Multidisciplinary Perspective" (2017) 55:1 Fam Ct Rev 120 [Salem & Saini]; Jane Bailey,
Jacquelyn Burkell & Graham Reynolds, "Access to Justice for All: Towards an Expansive Vision of Justice
and Technology" (2013) 31:2 Windsor YB Access Just 181 [Bailey, Burkell & Reynolds]; Michael Saini,
Rachel Birnbaum & Nicholas Bala, "Access to Justice in Ontario's Family Courts: The Parents' Perspective"
(2016) 37 Windsor Rev Legal Soc issues 1 [Saini, Birnbaum & Bala]; Thomas A. Cromwell, “Access to
Justice: Towards a Collaborative and Strategic Approach” (2012) 63 UNBLJ 38 [Cromwell]. 3 Acton
Committee, A Roadmap for Change, supra note 2.
Canadian justice system.
309
Following the release of the Action Committee's final report,
significant reforms to the Ontario family justice system began. However, it was not enough
as the crisis continued, with those seeking access to the family justice system still finding
it inaccessible, expensive and difficult to navigate.
310
The COVID-19 pandemic then brought further attention to the continued inaccessibility of
the Ontario family justice system. On March 11, 2020, the World Health Organization
officially declared COVID-19 as a global pandemic.
311
Four days later, on March 15, 2020,
Chief Justice Morawetz announced the suspension of all regular court operations across
Ontario effective March 17, 2020.
312
During a period of abrupt social distancing measures,
mandatory working from home and school closures, those in Ontario's family justice
system were forced to confront the reality that the current system was not fit for life in the
digital age.
313
Due to pandemic-related restrictions, the Ontario family justice system was
forced to make significant and necessary changes, particularly technological
advancements, in order to remain accessible. This paper will examine whether the recent
309
Action Committee on Access to Justice in Civil and Family Matters, “Meaningful Change for Family
Justice: Beyond Wise Words, Final Report of the Family Justice Working Group” (April 2013) online
(pdf): Canadian Forum on Civil Justice <www.cfcj-
fcjc.org/sites/default/files/docs/2013/Report%20of%20the%20Family%20Law%20WG%20Meaningful%2
0Change%20April%202013.pdf> [Action Committee, Beyond Wise Words] at 8.
310
See eg. Law Commission of Ontario, supra note 2 at foreword, 26, 73; Saini, Birnbaum & Bala, supra
note 2; Landau, supra note 2 at 7; Macfarlane, The National Self-Represented Litigants Project, supra note
2 at 40-41.
311
Dr. Tedros Adhanom Ghebreyesus, “WHO Director-General's opening remarks at the media briefing on
COVID-19 - 11 March 2020” (11 March 2020), online: World Health Organization
</www.who.int/director-general/speeches/detail/who-director-general-s-opening-remarks-at-the-
mediabriefing-on-covid-19---11-march-2020.
312
Chief Justice Geoffrey B. Morawetz, “Notice to the Profession, the Public and the Media Regarding Civil
and Family Proceedings” (15 March 2020), online: Ontario Superior Court of Justice
</www.ontariocourts.ca/scj/notices-and-orders-covid-19/notices-no-longer-in-effect/covid-19-
suspensionfam/> [Morawetz, Notice to the Profession].
313
Benjamin P Cooper, "Preliminary Thoughts on Access to Justice in the Age of COVID-19" (2020) 56:2
Gonz L Rev 227 at 234.
changes to Ontario's family justice system, including those implemented in response to the
COVID-19 pandemic, have made the system more accessible than ever before.
This paper proceeds as follows. Part I sets out the definition of access to justice and
describes what an accessible family justice system looks like. Part II considers how the
Ontario government has contributed to the access to justice crisis and provides specific
examples as to why Ontario’s family justice system remains inaccessible. Part III discusses
the key recommendations for reform that have been made to make the Ontario family
justice system more accessible, including the public’s access to legal information, access
to alternative dispute resolution services, and access to the courts. Lastly, Part IV provides
a discussion on where the current Ontario family justice system is, and determines whether
the recent transformation of the system has been the “fundamental” and “bold” change
needed to end the access to justice crisis in Ontario.
I. WHAT IS AN ACCESSIBLE FAMILY JUSTICE SYSTEM?
Access to justice has been a topic of debate in Canada since the 1970s.
314
Scholars have
proposed several theories for access to justice, starting with the idea that it simply refers to
gaining access to the formal court system, including judges and lawyers.
315
Over the last
few decades, there has been an expanded vision of access to justice beyond the courtroom,
to include a system that provides the public with information, resources and services to
help them avoid manage and resolve family law disputes.
316
Trevor Farrow recently labeled
this as “meaningful access to justice,”
317
which takes into account not only how accessible
314
Cromwell, supra note 2 at 39.
315
See, e.g. Salem & Saini, supra note 2 at 121; Bailey, Burkell & Reynolds, supra note 2 at 182.
316
See Action Committee, Beyond Wise Words, supra note 4 at 1-2, 10; Cromwell, supra note 2 at 38-39;
Landau, supra note 2 at 8; Salem & Saini, supra note 2 at 121, 123; Orna Rabinovih-Einy & Ethan Katsh,
“Access to Digital Justice: Fair and Efficient Processes for the Modern Age” (2017) 18 Cardozo J. Conflict
Resol 637 [Rabinovih-Einy & Katsh] at 637-638; Action Committee on Access to Justice in Civil and Family
Matters, “Responding Early, Responding Well: Access to Justice through the Early Resolution Services
Sector” (12 February 2013), online (pdf): Canadian Forum on Civil Justice
<www.cfcjfcjc.org/sites/default/files/docs/2013/Report%20of%20the%20Prevention%2C%20Triage%20an
d%20Refe rral%20WG%20.pdf > [Action Committee, Responding Early Responding Well] at 3.
317
Trevor Farrow & Lesley Jacobs, The Justice Crisis: The Cost and Value of Accessing Law (UBC Press
2020) [Farrow & Jacobs] at 7.
the court system is, but also how accessible the path is for addressing and resolving the
public’s legal disputes.
318
Most importantly, the access to justice debate has highlighted the
realization that, in order to systematically change the system in a way that makes it more
accessible, the change must consider the system’s users rather than the system’s
providers.14 This realization allows for changes to be made that better meet the needs of the
public for whom the justice system was designed for in the first place.15
Given the expanded vision of access to justice, an accessible family justice system is one
that assists the public with all aspects of their family dispute, from the initial stages of
deciding whether to separate to the final stages of settlement or court order. It also provides
the public with accurate and reliable legal knowledge so that they can make informed
decisions throughout their dispute. That legal knowledge can come in different forms, such
as free, online legal information, assistance from court staff, or legal advice from family
law practitioners. An accessible family justice system also services the unique needs of
each and every family by providing them with different ways in which their family dispute
can be addressed and resolved. The needs of Ontarians are not only legal, but can also
include financial, emotional and social, which makes family law particularly distinctive
from other areas of the law. An accessible family justice system also considers the
multidisciplinary nature of family law, as other areas of law, such as landlord and tenant
and tax law, which are frequently integrated in family disputes. Lastly, an accessible family
justice system makes navigating the court system simple and straightforward. This includes
the entire court system, from the court forms required to initiate a court action, to the stages
in each family law case and the court rules. The accessible justice system just described
does not resemble the current Ontario family justice system.
18 Action Committee on Access to Justice in Civil and Family Matters, “Report of the Access to Legal
Services Working Group” (May 2012), online (pdf): Canadian Forum on Civil Justice
<www.cfcjfcjc.org/sites/default/files/docs/2013/Report%20of%20the%20Access%20to%20Legal%20Se
318
Farrow & Jacobs, supra note 12 at 7.
rvices%20Wo rking%20Group.pdf> [Action Committee, Legal Services Report] at 3; Landau, supra note
2 at 8.
19 Action Committee on Access to Justice in Civil and Family Matters, “Report of the Court Processes
Simplification Working Group of the Action Committee on Access to Justice in Civil and Family Matters”
(May 2012), online (pdf): Canadian Forum on Civil Justice < https://www.cfcj-
fcjc.org/sites/default/files/docs/2012/Report%20of%20the%20Court%20Processes%20Simplification%20
Working%20Group.pdf> [Action, Committee, Court Processes Simplification Report] at 21.
II. ONTARIO’S FAMILY JUSTICE SYSTEM CRISIS
Ontario’s family justice system has been in a state of crisis for more than a decade.
319
Some
have attributed the crisis to the Ontario government simply not providing the public with
the services needed to effectively resolve their legal disputes.
320
The legal system’s
escalating cost, significant delays, inconsistencies, complexity and inability to address
issues of domestic violence are just a few of the factors contributing to the growing
dissatisfaction among users of Ontario’s family justice system.
321
This section considers
how the Ontario government has contributed to the access to justice crisis and provides
specific examples as to why Ontario’s family justice system remains inaccessible.
One of the most significant barriers to accessing family justice is the cost of legal
services.
322
Low-income individuals are not the only ones unable to afford proper legal
services. There is now a greater awareness that middle class individuals are unable to obtain
legal services because they cannot afford a lawyer and also do not qualify for legal aid.
323
Contributing to the cost of the family court system is the number of court appearances
Ontarians must attend prior to their matter going to trial.
324
Parties must attend a case
conference, settlement conference and trial management conference before trial. They may
also have to attend motions if temporary orders are required, as well as first appearances
319
See e.g. Saini, Birnbaum & Bala, supra note 2 at 17-20; Law Commission of Ontario, supra note 2 at 5.
320
Cromwell, supra note 2 at 40.
321
Landau, supra note 2 at 8.
322
Saini, Birnbaum & Bala, supra note 2 at 18; Ab Currie, “Let’s Pick Up Where we Left Off 25 Years Ago
to Expand on Access to Civil Justice in Canada” (Toronto: November 2020) online (pdf): Canadian Forum
on Civil Justice <cfcj-fcjc.org/wp-content/uploads/Lets-Pick-Up-Where-We-Left-Off-25-Years-Ago-
ToExpand-Access-To-Civil-Justice-in-Canada-Ab-Currie.pdf> at 5.
323
See Trebilcock, Duggan & Sossin, supra note 1; See also Action Committee, Legal Services Report, supra
note 14 at 3.
324
Saini, Birnbaum & Bala, supra note 2 at 17.
or “speak to dates” to schedule their matter. Where parties are close to settlement, they may
also be required to attend a second settlement conference or trial management conference.
By adding another settlement opportunity with the judge’s assistance, the court system is
further delayed and costs are increased due to additional preparation and court appearances.
As a result of these further court appearances, the time it takes to complete a family court
case is increasing. In addition to these factors, the hourly rates of lawyers have continued
to rise over the years, which has led to an increase in the cost of family law cases.
325
The high cost of legal services occurs not only in the court system, but also when using
alternative dispute resolution (“ADR”) services like mediation, arbitration or collaborative
family law. For example, while arbitration can lead to a final result faster than a trial due
to the current delays in the court system, the arbitration process is still very similar to a
formal trial, which typically includes questioning of the parties at a local court reporters
office, hiring financial experts, as well as the cost of the arbitrator. The use of collaborative
family law includes hiring lawyers for each party, a financial expert, as well as a child-
psychologist if parenting issues are in dispute, all of whom have their own hourly rates. As
a result, when using an ADR service, more professionals are usually required, resulting in
higher legal fees for the parties.
The number of forms that must be completed prior to commencing a court action is another
factor contributing to the inaccessibility of the Ontario family court system. Currently, there
are seven forms that need to be filed in the Ontario Superior Court of Justice if new claims
are being made for parenting, property and support.
326
If a settlement agreement or final
court order needs to be amended and the parties do not agree on the amendments, there are
different forms that need to be completed.
327
The different forms have contributed to the
325
Action Committee, A Roadmap for Change, supra note 2, at 4.
326
Continuing Record, Form 8: Application, Form 13: Financial Statement (Support Claims) or Form 13.1:
Financial Statement (Property and Support Claims), Form 13A: Certificate of Financial Disclosure, Form
35.1 Affidavit (Decision-Making Responsibility, Parenting Time, Contact), Support Deduction Order,
Support Deduction Order Information Form.
327
Form 15: Motion to Change, Form 15A: Change Information Form. If parenting terms need to be
amended, need to also file Form 35.1 Affidavit (Decision-Making Responsibility, Parenting Time, Contact).
If child and/or spousal support terms need to be amended, a party also needs to file Form 13: Financial
confusion of the court system as, for example, even some family law practitioners have
difficulty in understanding whether they need to commence an application or motion to
change when a client is looking to change a separation agreement. As a result, the family
justice system continues to be too complicated and difficult to understand for the public.
328
Based on the expensive and time-consuming nature of family litigation, there has been an
increase in the amount of people who choose to represent themselves in court, also known
as a “self-represented litigant” (“SRL”). In Canada, approximately 50% of people attempt
to resolve their legal dispute on their own based on the continued inaccessibility of the
justice system.
329
The issue with SRL’s is that they have difficulty navigating the family
court system, often need more court resources, and hold unrealistic expectations of what
they may accomplish due to their lack of legal knowledge.
330
A recent study found that 91%
of Ontario family law practitioners felt that costs increased for their client’s when the other
spouse was self-represented.
331
In response to the rise in SRL’s, there have been
recommendations to expand and modernize the way in which legal services are provided,
such as the introduction of unbundled legal services, or the controversial recommendation
of permitting paralegals to assist families with certain family law matters.
332
In light of increasing costs, complexity and delays within the family court system, a greater
need has emerged for more affordable alternatives to courtroom litigation to assist the
public in resolving family law disputes. However, aside from the costs associated with
participating in an ADR service, another issue is that alternatives to court usually involve
Statement (Support Claims), Form 13A: Certificate of Financial Disclosure, Support Deduction Order and
Support Deduction Order Information Form.
328
Action Committee, A Roadmap for Change, supra note 2 at 8.
329
Rachel Birnbaum, Nicholas Bala & Lorne Bertrand, "The Rise of Self-Representation in Canada's Family
Courts: The Complex Picture Revealed in Surveys of Judges, Lawyers and Litigants " (2012) 91:1 Can B
Rev 67 at 71; See also Ibid at 4.
330
Government of Canada, Department of Justice, “JustFacts, Self-Represented Litigants in Family Law”
(June 2016), online: <https://www.justice.gc.ca/eng/rp-pr/fl-lf/divorce/jf-pf/srl-pnr.html>.
331
Justice Annemarie E. Bonkalo, “Family Legal Services Review” (31 December 2016), online: Ministry of
the Attorney General
<https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/family_legal_services_review/>.
332
Ibid.
individuals who are settlement oriented and have some positive relationship with the other
spouse.
333
As a result, there are numerous cases, such as those involving family violence or
parental alienation, where the current ADR services available simply cannot assist families
the way that judicial intervention can. There is therefore a clear gap in Ontario’s family
justice system, as those with ample financial means have better access to the system than
those with limited or no economic means.
334
III. HOW TO MAKE THE ONTARIO FAMILY JUSTICE SYSTEM MORE
ACCESSIBLE
For Ontario to have an accessible family justice system, reform to the system must address
and remove, or at the very least minimize, the numerous factors that contribute to the
frustration among its users. Reports and articles on access to family justice reform made
over the past decade identify three main suggestions for change: (1) the public’s access to
reliable, accurate, and easy-to-understand legal information; (2) the public’s access to
alternative dispute resolution services; and (3) simplifying the public’s access to the family
court system. This section will go over each of these three suggestions in detail, discussing
previous reform proposals and identifying changes made to the Ontario family justice
system in response.
A. THE PUBLIC’S ACCESS TO LEGAL INFORMATION
When people have access to reliable, accurate, and easy-to-understand legal information,
the family justice system is more accessible. In 2013, the Law Commission of Ontario
(“LCO”) appropriately stated,
“[f]or the law to be effective for those who are subject to it, access to knowledge
about the law and capacity to negotiate the law, with or without assistance, is as
333
Noel Semple & Nicholas Bala, “Reforming the Family Justice System: An Evidence-Based Approach”
(2 October 2013) online (pdf):
<papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2366934_code686285.pdf?abstractid=2366934&mirid=1>
[Semple & Bala] at 8.
334
Salem & Saini, supra note 2 at 121.
important as “the law” itself. A “good” statute has limited value if it is difficult to
understand and accessing the rights it provides formidable.”
335
Knowing and exercising one’s rights empowers the public by allowing them to better
understand what rights to pursue, what rights to avoid, and to feel more in control over the
process and outcomes.
336
Additionally, having accurate and reliable legal information can
allow the public to undertake a risk assessment of their claims and weigh what is most
important to them against the potential financial repercussions of pursuing a claim that
might not be successful.
Access to reliable and accurate legal information early in a dispute can also increase the
use of ADR services. The LCO refers to this as "front end loading the system,"
337
as it
allows people to identify the nature of their legal problem early on and then choose the best
method for them to resolve their dispute, such as dealing with it themselves, filing a court
action, or engaging in an ADR service like mediation.
338
By having more information about
the family law system at the beginning of a dispute, people can begin to realize that going
to court is only one of the options available. If more people participate in ADR services,
the court system can be used only for urgent matters, highconflict situations, or precedent-
setting cases.
339
Access to easy-to-understand legal information is especially important for those who
cannot afford a lawyer.
340
SRL’s rely on freely available legal information to educate
335
Law Commission of Ontario, supra note 2 at 5-6.
336
Action Committee, Legal Services Report, supra note 14 at 5.
337
Law Commission of Ontario, supra note 2 at 28.
338
See e.g. Nicholas Bala, “Reforming Family Dispute Resolution in Ontario: Systemic Change and Culture
Shifts” in Trebilcock, Duggan & Sossin, supra note 1 [Bala] at 279; Justice George Czutrin, “Some
Reflections on Family Dispute Resolution in Ontario” in Trebilcock, Duggan & Sossin, supra note 1
[Czutrin] at 326; Cromwell, supra note 2 at 45; Action Committee, Beyond Wise Words, supra note 4 at 7
and 41; Law Commission of Ontario, supra note 2 at 1, 64, 71; Action Committee, Responding Early
Responding Well, supra note 11 at 3; Landau, supra note 2 at 9.
339
Law Commission of Ontario, supra note 2 at 28.
340
Bala, supra note 35 at 291.
themselves about their legal rights and processes. If the legal information is difficult to
understand, SRL’s may remain unfamiliar about the law and the procedures of the legal
system, which may contribute to delays within the family system. Making legal information
simple to comprehend and freely available to the public can help reduce delays, minimize
costs and promote access to justice.
Following the rise in SLR’s, scholars began to recognize that the manner in which legal
information was distributed to the public was contributing to the access to justice
crisis.
341
Many felt that the information available was too complicated to understand
because it was geared towards the legal profession rather than the general public.
342
Others
also felt that there was too much legal information available, particularly as a result of the
internet, making it difficult to navigate and overwhelming for many to know what
information was reliable.
343
Due to these challenges, people with family law issues were
more likely to seek legal advice from friends and family members.
344
According to the
Action Group on Access to Justice, 32% of Ontarians sought legal advice from family
members and friends in 2016, compared to 26% who sought advice from online legal
resources.
345
As a result, the general public may be given incorrect legal information, which
can lead to unmanageable expectations, increased costs and delays in resolution.
341
See e.g. Czutrin, supra note 35 at 320-321; Cromwell, supra note 2 at 39; Action Committee, Beyond
Wise Words, supra note 4 at 41–44; Saini, Birnbaum & Bala, supra note 2 at 19-20; Law Commission of
Ontario, supra note 2 at 18-19; Action Committee, Legal Services Report, supra note 14 at 8.
342
Action Committee, Beyond Wise Words, supra note 4 at 10; Macfarlane, The National Self-Represented
Litigants Project, supra note 2 at 64-65; Saini, Birnbaum & Bala, supra note 2 at 19-20; Law Commission
of Ontario, supra note 2 at 19.
343
Action Committee, A Roadmap for Change, supra note 2 at 13; Law Commission of Ontario, supra note
2 at 18, 59.
344
Law Commission of Ontario, supra note 2 at 18.
345
The Action Group on Access to Justice, supra note 2 at 3.
1. Suggestions for Reform to Make Legal Information More Accessible to the Public
In response to these challenges, one common suggestion for reform among key scholars
was for a single portal of legal information to be made available to the public.
346
This would
enable a centralized access point for reliable legal information to be provided to those with
legal issues. Many have advocated for coordination and collaboration among key
stakeholders, such as government, law foundations, law societies and legal aid plans in
order to be successful in providing timely and accurate information through a central entry
point.
347
The LCO also recognized that an alliance among these stakeholders could help
address the diversity of all Ontarians because they have the experience and knowledge to
contribute to the development of unified legal information.
348
Furthermore, by broadening
the scope of legal information available to the public, families will be able to connect with
the legal and non-legal services that are best suited to their specific needs.
349
2. Recent Advances in Providing Better Legal Information to the Public
In reply to the reform suggestions, Ontario made two distinct changes in terms of providing
legal information to assist individuals in resolving family law disputes. First, the provincial
courthouses responded through the availability of the Mandatory Information Program
(“MIP”)
350
and the Family Law Information Centre (“FLIC”)
351
in each courthouse across
Ontario. The MIP is a mandatory class for all parties who are involved in a family court
case where they learn about the potential effects of separation and divorce on children,
alternatives to going to court, the litigation process, as well as other local services available
346
Action Committee, Legal Services Report, supra note 14 at 6; Law Commission of Ontario, supra note 2
at 19; Macfarlane, The National Self-Represented Litigants Project, supra note 2 at 116.
347
Action Committee, Legal Services Report, supra note 14 at 5-6; Action Committee, Court Processes
Simplification Report, supra note 15 at 11; Law Commission of Ontario, supra note 2 at 60; Action
Committee, A Roadmap for Change, supra note 2 at 13.
348
Law Commission of Ontario, supra note 5 at 60.
349
Salem & Saini, supra note 2 at 133.
350
See Family Law Rules, O.Reg 114/99 [Family Law Rules], r 8.1; See also Farrow & Jacobs, supra note
12 at 192.
351
Ontario, “Family Justice Services” (last modified 12 August 2021), online:
<www.ontario.ca/page/family-justice-services#section-2> [Ontario, Family Justice Services].
to families.
352
However, the MIP can only be attended by those who are a part of a family
litigation file and therefore not available to those seeking legal advice and information at
the outset of their dispute. On the other hand, the FLIC can be attended by any member of
the public where they can obtain the same information available at the MIP program.
353
Second, in response to the recommendation for a single entry portal for accessing legal
information, Community Legal Education Ontario (“CLEO”) has expanded and
modernized the Steps to Justice website.
354
This was done in collaboration with a wide
range of key stakeholders
355
and provides the public with legal information on common
legal problems, guided pathways for different areas of law including family law, and assists
with the drafting of court forms.
356
It also offers the public information that is easily
accessible, accurate and simple to understand for those seeking assistance in understanding
their family law problem.
B. THE PUBLIC’S ACCESS TO ALTERNATIVE DISPUTE RESOLUTION SERVICES
Not every family law dispute requires court intervention. In Ontario, there are a variety of
ADR services available to assist families in resolving their family law matter without going
to court. Examples of these are negotiation with or without a lawyer, mediation, private
arbitration and collaborative law. The availability of ADR services to the public promotes
access to justice by providing families with alternatives to managing and resolving their
dispute without the need to enter a courtroom.
Rather than going to court, ADR services give families more control over the process and
outcome of their dispute and can be tailored to the individual needs of both parties. For
352
Ibid.
353
Ontario, Family Justice Services, supra note 48.
354
CLEO Connect, “About CLEO Connect” (last visited 21 August 2021), online:
<https://cleoconnect.ca/what-we-do/>.
355
This includes the Ministry of the Attorney General, Legal Aid Ontario, community legal clinics, the Law
Society of Ontario, the Superior Court of Justice, the Ontario Court of Justice, The Action Group on Access
to Justice.
356
“Steps to Justice” (last visited 21 August 2021), online: <https://stepstojustice.ca/>.
example, ADR services can allow for more breaks throughout the day than in court and can
be scheduled around the availability of the parties. It also allows parties to select a neutral
intermediary with expertise in the specific family issues in dispute, as opposed to having
no choice in the judge if they go to court. Another important aspect of using an ADR service
is the ability to come up with a solution that best meets the needs of everyone involved,
especially the children. Individuals who use an ADR service can be more creative and have
greater input in the final settlement rather than receiving a final order from a judge after a
lengthy trial. The Action Committee believes that ADR services can help make the family
justice system more affordable, fair, and efficient.
357
This can be accomplished by
refocusing the families' attention on their needs and interests rather than the rigid rules and
positions commonly found in the courtroom.
358
1. Suggestions for Improvements to Alternative Dispute Resolution Services
Raising public awareness of the various ADR services available can make the family justice
system more accessible. It was found that the majority of the public is unaware of ADR
services available that can assist them with their family law dispute. According to Dr. Julie
Macfarlane’s National Self-Represented Litigants Project, “[a] significant number of SRL’s
say that they were never offered mediation, and/or do not know what it is.”
359
Dr.
Macfarlane recognized that “[t]his is a clear gap that needs to be urgently addressed.”
360
One way to address this concern is through the suggestion of triaging families at the outset
of their family dispute with the assistance of Case Assessment Coordinators (“CAC”).
361
This approach is similar to the LCO’s recommendation of “front end loading the system,”
in which triaging can assist the public by providing information early in their dispute about
357
Action Committee, Court Processes Simplification Report, supra note 15 at 13.
358
Rabinovih-Einy & Katsh, supra note 11 at 641.
359
Macfarlane, The National Self-Represented Litigants Project, supra note 2 at 12.
360
Ibid.
361
Landau, supra note 2 at 7, Bala, supra note 35 at 279; Czutrin, supra note 35 at 326; Cromwell, supra
note 2 at 45; Action Committee, Beyond Wise Words, supra note 4 at 7, 41; Law Commission of Ontario,
supra note 2 at 64, 71.
the different pathways available to best suit their needs, including an ADR service. Triaging
can also assist in determining how a case should be handled, particularly ones which may
involve power imbalances or family violence.
Aside from receiving legal information online, people can also obtain legal information
from lawyers. However, many lawyers continue to be focused on bringing matters to court
rather than making use of an ADR service. The Action Committee recognized that the
traditional role of the “zealous advocate” is too limited for the varying demands of family
law practice.
362
As a result, many scholars have suggested culture change as one of the
ways to enhance access to justice, proposing that family professionals should move away
from a court-centered perspective to a more collaborative approach.
363
The Action
Committee declared “[t]he motto might be: court if necessary, but not necessarily court.”
364
Dr. Macfarlane recently labelled this change in perspective as the “new lawyer,”
365
which
considers an alternative model of lawyering practice but uses the same expertise and
understanding of traditional legal practice.
366
The “new lawyer” is evolved in a way that
advances the best possible result for the client through settlement, using amicable dialogue,
encouragement, and relationship management.
367
Another way to improve access to family justice through the use of ADR services is to
incorporate technology. This can likely reduce costs to the public while potentially serving
a larger number of people. It has been suggested by many that ADR services be expanded
to include Online Dispute Resolution (“ODR”) to achieve this goal.
368
ODR refers to a
362
Action Committee, Beyond Wise Words, supra note 4 at 30.
363
See e.g. Bala, supra note 35 at 274, 279, 313-314; Action Committee, Beyond Wise Words, supra note 4
at 3, 24- 25; See also, Hryniak v. Mauldin, 2014 SCC 7 at paras 2, 28, 32.
364
Action Committee, A Roadmap for Change, supra note 2 at 11.
365
Julie Macfarlane, “The Evolution of the New Lawyer: How Lawyers are Reshaping the Practice of Law”
(2008) 1 J Disp Resol 61.
366
Ibid at 63-64.
367
Ibid.
368
Ontario, Putting Justice Within Reach, supra note 2 at 14; CBA, Reaching Equal Justice, supra note 2 at
422-23; Action Committee, A Roadmap for Change, supra note 2 at 16; The Canadian Bar Association, “No
variety of ADR services that use technology to communicate and resolve a dispute virtually
without the requirement of the parties being physically present together.
369
In 2013, the
Action Committee recognized the importance of ODR in the court system, acknowledging
that it may open up a number of opportunities for easily accessible and low-cost dispute
resolution.
370
They recommended that ODR services should also be used where suitable
and practicable.
371
The Ontario government also discussed the use of ODR in its 2016
report, recommending that this type of technology would ensure that the justice system is
designed in a way that is relevant to Ontarians for years to come.
372
In 2019, the Law
Society of Ontario Technology Taskforce recommended the use of ODR platforms as it can
provide the public with an array of legal services including predicted outcomes of their
legal matter to assist in facilitating mediation.
373
When technology such as ODR platforms
are properly used, it can substantially improve access to justice by reducing barriers of cost,
time and delay in the process.
374
2. Recent Modifications to Ontario’s Alternative Dispute Resolution Services
In response to the call for more people to take advantage of ADR services, the federal
government enacted legislation requiring legal professionals to advise their clients about
ADR services available to them. As of March 1, 2021, amendments to the federal Divorce
Turning Back: CBA Task Force Report on Justice Issues Arising from COVID-19” (February 2021), online
(pdf):
<www.cba.org/CBAMediaLibrary/cba_na/PDFs/Publications%20And%20Resources/2021/CBATaskForce
.pdf> [CBA, No Turning Back] at 8.
369
Government of Canada, Department of Justice, “Dispute Resolution Reference Guide: Online Dispute
Resolution” (August 2012), online : <www.justice.gc.ca/eng/rp-pr/csj-sjc/dprs-
sprd/res/drrgmrrc/10.html#i>.
370
Action Committee, Legal Services Report, supra note 14 at 14-15.
371
Action Committee, A Roadmap for Change, supra note 2 at 6.
372
Ontario, Putting Justice Within Reach, supra note 2 at 14.
373
Will Morrison, “Technology Task Force, Update Report” (November 2019), online (pdf): Law Society of
Ontario
<lawsocietyontario.azureedge.net/media/lso/media/about/convocation/2019/technologytaskforcereport-
en.pdf> [Morrison] at 13.
374
Michael J Wolf, "Collaborative Technology Improves Access to Justice" (2012) 15:3 NYU J Legis & Pub
Pol'y 759 [Wolf] at 776.
Act,
375
provincial Family Law Act
376
and Children’s Law Reform Act
377
came into effect
where family legal advisers are now required to advise their clients about the variety of
ADR services available, referred to in the legislation as “family dispute resolution
processes.” Family legal advisers are also required to encourage clients to attempt to
resolve their matters outside of court, unless it would clearly not be appropriate to do so.
378
To assist those who cannot afford to use ADR services, the Ontario Ministry of the Attorney
General has provided free family mediation services at all of Ontario’s courthouses.
379
However, this service is only available for parties who have already filed a court action,
and only for those who have a court appearance that day.
380
Off-site family mediation
services are also available for a fee based on the income of the parties and the number of
children.
381
Additionally, effective May 14, 2021, the Superior Court of Justice developed a Binding
Judicial Dispute Resolution pilot project in the Simcoe, Muskoka and Cornwall Superior
Court of Justice, Family Court Branch as well as the Superior Courts in the Northwest and
Northeast regions.
382
This project was designed to offer family law litigants with an easier
approach to reaching a final resolution, as well as assist in addressing significant backlogs
in family cases caused by COVID-19.
383
While this project requires parties to commence a
375
Divorce Act, RSC 1985, c 3 (2nd Supp) [Divorce Act].
376
Family Law Act, R.S.O. 1990, c. F.3 [Family Law Act].
377
Children’s Law Reform Act, RSO 1990, c C.12 [Children’s Law Reform Act].
378
Children’s Law Reform Act, supra note 74 at s 33.2(2); Divorce Act, supra note 72 at s 7.7(2); Family Law
Act, supra note 73 at s 47.3(2); See also, Moving Ontario Family Law Forward Act, 2020, S.O. 2020, c. 25.
379
Ontario, Family Justice Services, supra note 48.
380
Ibid; Ontario Court of Justice, “COVID-19: Scheduling of Family Matters in the Ontario Court of Justice
(last modified 21 April 2021), online: <www.ontariocourts.ca/ocj/covid-19/archives/covid-19-schedulingof-
family-matters-in-the-ontario-court-of-justice-april-8-2021-revised-april-21-2021/>.
381
Ontario, Family Justice Services, supra note 48.
382
Chief Justice Geoffrey Morawetz, “Practice Advisory Concerning the Superior Court of Justice’s Binding
Judicial Dispute Resolution Pilot Projects” (10 May 2021), online: Ontario Superior Court of Justice
<www.ontariocourts.ca/scj/practice/binding-judicial-dispute-resolution-pilot/> [Morawetz, Binding Judicial
Dispute Resolution Pilot Projects].
383
Ibid.
court action and file other necessary court documentation in support of their position,
384
it
can broaden the type of ADR services available to those with less complex family law cases
but have difficulty reaching a final resolution on their own.
C. SIMPLIFYING THE PUBLIC’S ACCESS TO THE FAMILY COURT SYSTEM
Simplifying the family court system can also improve access to justice. Access to legal
services and the court is a critical component of access to justice.
385
To have an effective
court system, it must function in a fair, resourceful and balanced manner to meet the needs
of the public.
386
Nonetheless, the current family court system is becoming more
complicated and more unbalanced in relation to the needs of the public and the disputes
before it.
387
In its final report, the Action Committee stated that
“[e]veryday legal problems need everyday solutions that are timely, fair and
costeffective. Procedures must be simple and proportional for the entire system to
be sustainable. To improve the system, we need a new way of thinking that
concentrates on simplicity, coherence, proportionality and sustainability at every
stage of the process.”
388
In response, family law scholars have advocated for the expansion of the Family Court of
the Superior Court of Justice, also known as the Unified Family Court (“UFC”), across all
of Ontario, as well as the use of technological innovations to create a modern court system
that meets the needs of Ontarians today.
1. Recommendations for Reform to the Family Court System
384
Ibid.
385
Action Committee, Court Processes Simplification Report, supra note 15 at 2.
386
Ibid at 1.
387
Action Committee, A Roadmap for Change, supra note 2 at 8.
388
Ibid.
i. Unified Family Court
Many scholars agree that the UFC will assist with the access to justice crisis.
389
For
Ontarians, family law includes both federal and provincial legislation; thus, in the absence
of the UFC, jurisdiction over family cases in Ontario is split between the Superior Court of
Justice and the Ontario Court of Justice.
390
The UFC is a court which hears all family law
disputes in one forum, regardless of what federal or provincial claims are being sought.
391
With the increase in complex and high-conflict family matters before the court, expanding
the public’s ability to access the court through the UFC can help to simplify the family
court system and make it easier for families to navigate. This can also assist in reducing the
amount of additional conflict between the parties and provide healthier long-term
resolutions for families and their children.
392
Case management is a unique feature of the UFC that makes the court system more
accessible. This is where the same judge presides over all stages of a court matter, including
conferences and motions, meaning which means "[o]ne judge for one family."
393
Case
management can provide judges with an influential tool to assist in improving access to
justice by facilitating more settlement and providing the public with more accountability
and consistency within the family court system.
394
This is due to the fact that judges in the
UFC are specialized in family law prior to being appointed to the bench and therefore have
389
See Bala, supra note 35 at 301; Czutrin, supra note 35 at 319 to 320; Action Committee, Beyond Wise
Words, supra note 4 at 7, 8, 46-48; Landeau, supra note 2 at 17; Law Commission of Ontario, supra note 2
at 29; David M. Steinberg, "Developing a Unified Family Court in Ontario” (1999) 37:4 Family &
Conciliation Courts Rev 454; Barbara A. Babb & Judith D. Moran, Caring for Families in Court: An
Essential Approach to Family Justice (Abingdon, Oxon; New York, NY: Routledge, 2019) at 6.
390
Ontario Superior Court of Justice, “Family Proceedings” (last visited 23 August 2021) online:
<www.ontariocourts.ca/scj/family/> [Ontario Superior Court of Justice, Family Proceedings].
391
Department of Justice Canada, “The Unified Family Court Summative Evaluation Final Report” (March
2009), online (pdf): Evaluation Division, Office of Strategic Planning and Performance Management <
www.justice.gc.ca/eng/rp-pr/cp-pm/eval/rep-rap/09/ufc-tuf/ufc.pdf> [Department of Justice Canada] at 1.
392
Ibid.
393
Bala, supra note 35 at 298; See also Landau, supra note 2 at 5, 15; Family Law Rules, supra note 47 at r
39(9).
394
Action Committee, Court Processes Simplification Report, supra note 15 at 8.
specific experience and knowledge in helping families navigate the court system.
395
Additionally, high conflict and high risk family cases use a disproportional amount of
justice system resources.
396
A specialized judge can identify these cases early on and
provide a greater degree of supervision and accountability to better promote safety and
settlement.
397
The UFC can help reduce the amount of time it takes to resolve a family
matter, and as a result, reduce costs for families across
Ontario.
398
ii. Use of Technology
Technology can improve access to family justice because it is more efficient, cost effective
and user-friendly.
399
While the advancements of technology continue to change modern
life, many have observed that these technological developments are by-passing the justice
system.
400
As a result, scholars have recommended four ways that technology could be used
to improve access to the family court system.
Virtual court appearances are the most prominent recommendation for improving access to
family law justice through the use of technology.
401
Virtual appearances save the cost and
inconvenience of travelling to court as people can access the court system from the comfort
of their own home. This is especially important for disabled litigants, those living in remote
395
Action Committee, A Roadmap for Change, supra note 2 at 19.
396
Bala, supra note 35 at 299.
397
Department of Justice Canada, supra note 88 at 36.
398
Action Committee, Court Processes Simplification Report, supra note 15 at 8.
399
Ibid at 5; Darin Thompson, "Creating New Pathways to Justice Using Simple Artificial Intelligence and
Online Dispute Resolution" (2015) 2:1 IJODR 4 at 8.
400
See e.g. Action Committee, Legal Services Report, supra note 14 at 3; Action Committee, Court Processes
Simplification Report, supra note 15 at 5; Action Committee, A Roadmap for Change, supra note 2 at 16;
Action Committee, Beyond Wise Words, supra note 4 at 55; Ontario, Putting Justice Within Reach, supra
note 2.
401
Ontario, Putting Justice Within Reach, supra note 2 at 11; Action Committee, Court Processes
Simplification Report, supra note 15 at 7 - 8; Action Committee, A Roadmap for Change, supra note 2 at 17;
Wolf, supra note 71 at 785; Bailey, Burkell & Reynolds, supra note 2 at 201.
arears, and the poor.
402
It can also increase the safety of family litigants, including those
who have been subject to domestic violence.
403
Many scholars have also recommended simple and interactive court forms to improve
access to justice.
404
This includes forms that use plain language, a question and answer
approach, or tick the box.
405
Many family litigants rely on court forms for guidance and
advice on what information and documentation they must provide when filing a family law
claim. However, many of the family law forms are difficult to understand and complete,
resulting in barriers to those who do not have the assistance from a lawyer.
406
Simplified,
interactive court forms can save money and time for both the court and litigants by assisting
the public in properly completing the applicable court forms, resulting in fewer rejections
from the court staff.
407
This can help empower family litigants and give them confidence
when navigating the family court system.
Electronic filing of court documents is another recommendation to improve access to
justice.
408
Electronic filing minimizes or eliminates in-person attendances and provides
some of the same accessibility benefits as virtual hearings.
409
It no longer requires a person
402
Bailey, Burkell & Reynolds, supra note 2 at 200- 201; CBA, No Turning Back, supra note 65 at 9.
403
Bailey, Burkell & Reynolds, supra note 2 at 200; See also Wolf, supra note 71 at 785.
404
See, e.g. Macfarlane, The National Self-Represented Litigants Project, supra note 2 at 9; Law
Commission of Ontario, supra note 2 at 22; Landau, supra note 2 at 15; Action Committee, Court Processes
Simplification Report, supra note 15 at 5; Action Committee, Beyond Wise Words, supra note 4 at 49-50.
405
Action Committee, Court Processes Simplification Report, supra note 15 at 6; Action Committee, Beyond
Wise Words, supra note 14 at 49; Macfarlane, The National Self-Represented Litigants Project, supra note 2
at 9.
406
Macfarlane, The National Self-Represented Litigants Project, supra note 2 at 9.
407
Ibid; Bailey, Burkell; & Reynolds, supra note 2 at 195; Action Committee, Court Processes Simplification
Report, supra note 15 at 5.
408
See, e.g., Action Committee, A Roadmap for Change, supra note 2 at 16; Ontario, Putting Justice Within
Reach, supra note 2 at 3; CBA, No Turning Back, supra note 65 at 9.
409
Action Committee, Court Processes Simplification Report, supra note 15 at 6-7.
to take time away from their work and family to attend court in person for things that could
be dealt with online.
410
Another recommended measure to improve access to justice is real time court orders.
411
Prior to the COVID-19 pandemic, there was no mechanism in place that allowed judges to
create and sign court orders on the spot, unless the order was anticipated and prepared in
advance by counsel. Hodson recognized the benefits from real time court orders, including
significantly reducing the time the court spends on approving draft orders,
412
as well as the
ability to standardize the wording of court orders to ensure consistency.
413
2. Improvements Made to Simplify the Family Court System in Ontario
Prior to the COVID-19 pandemic, the use of technology in the family justice system was
slow and sparse. The placement of Wi-Fi in each of the courthouses across Ontario did not
begin until the fall of 2017, and was not expected to be completed until 2019.
414
Almost all
court appearances, as well as the issuing and filing of court documentation, took place in
person, and paper disclosure was still widely used. In 2018, Ontario introduced online filing
of joint divorce applications.
415
That same year, the Ministry of the Attorney General also
partnered with CLEO to develop online interactive Guided Pathways to Family Court
Forms which allowed users to generate family court forms simply by answering a series of
online question and upon completion, the software organizes the answers given and enters
410
Ontario, Putting Justice Within Reach, supra note 2 at 3.
411
Action Committee, A Roadmap for Change, supra note 2 at 16-17; Action Committee on Access to Justice
in Civil and Family Matters, “Colloquium Report” (June 2014), online (pdf): Canadian Forum on Civil
Justice <www.cfcj-fcjc.org/sites/default/files//docs/2014/ac_colloquium_web_FINAL.pdf> at 9.
412
David Hodson, “The Role, Benefits, and Concerns of Digital Technology in the Family Justice System”
(2019) 57:3 Fam C Rev 425 at 426.
413
Ibid at 427.
414
Ontario, Putting Justice Within Reach, supra note 2 at 12.
415
Ontario Bar Association, “Update: The Online Filing Service for Joint Divorce Applications is Available
as of November 19, 2018” (19 November 2018), online:
<www.oba.org/Sections/FamilyLaw/Resources/Resources/Update-The-Online-Filing-Service-for-Joint-
Divor>.
it onto the appropriate form.
416
This program has since been further expanded to include
conference briefs, completing net family property statements, and making or responding to
a motion, just to name a few.
417
Following Chief Justice Morawetz's announcement in March 2020 that most in-person
court operations in Ontario would be suspended, the family court system underwent
significant technological change.
418
To ensure that social distancing restrictions were
adhered to, most family court appearances were heard virtually, including motions,
conferences, and trials.
419
Court documents could also be commissioned and signed
electronically,
420
as well as filed through specific courthouse e-mail addresses rather than
in person.
421
As a result of the suspension of in-person court operations, significant delays were caused
due to the inability to access physical family files. A family law matter could not be handled
properly if the files were not accessible. Consequently, many litigants were forced to scan
and email copies of their court documents to the courthouse in order for judges to access
files remotely. An online document exchange system therefore became necessary. On July
29, 2020, the Ministry of the Attorney General announced the use of Thomson Reuters
416
Ibid; Action Committee, Beyond Wise Words, supra note 4 at 49-50.
417
Steps to Justice, “About Family Law Guided Pathways” (last visited 23 August 2021), online:
<stepstojustice.ca/guided-pathways/family-
law/?gclid=cjwkcajwnpoebha0eiwa609refwz8bjmlcmgbm3orjzxsc6w-b_24dr4pfdkitf9k3cjle28-
3q7bocpeaqavd_bwe>.
418
Morawetz, Notice to the Profession, supra note 7.
419
Morawetz, Notice to the Profession, supra note 7.
420
Administering Oath or Declaration Remotely, O. Reg. 431/20; See also, Law Society of Ontario,
“Remote Commissioning” (last visited 23 August 2021) online: <lso.ca/lawyers/practice-supports-
andresources/topics/the-lawyer-client-relationship/commissioner-for-taking-affidavits-and-
notarypubl/l%E2%80%99attestation-a-distance>.
421
Morawetz, Notice to the Profession, supra note 7; Tania Sourdin, Bin Li & Donna Marie McNamara,
“Court Innovations and Access to Justice In Times Of Crisis” (2020) 9 HPT 447 [Sourdin, Li & McNamara]
at 449.
CaseLines (“CaseLines”) in the Ontario Superior Court of Justice,
422
which allows for
litigants and the court to upload and access their specific family law file online. On August
10, 2020, the CaseLines pilot project began in Toronto, including family matters other than
child protection cases or cases that were subject to a sealing order.
423
As of April 19, 2021,
the use of CaseLines was expanded to Central East and Central South judicial regions, with
a continued province-wide rollout to be expanded throughout Spring and early Summer
2021.
424
Throughout the pandemic, the Ontario Family Law Rules
425
have been amended several
times to accommodate the technological advancements within the family justice system.
This includes giving the courts discretion over the use of telephone or video technology in
a case,
426
permitting electronic filing of court documents through the Ontario Justice
Services website,
427
as well as permitting electronic signatures on court documents.
428
Furthermore, the Attorney General for Ontario, Doug Downey, recently wrote a letter to
the Federations of Ontario Law Associations Family Law Committee, asking for input on
the proposal to create new standard orders regarding financial disclosure requirements in
family law matters.
429
It is being proposed that once a pleading is issued, standard financial
422
Memorandum from Chief Justice Geoffrey B. Morawetz to Bar and Legal Associations re: CaseLines (29
July 2020), online: <www.ontariocourts.ca/scj/notices-and-orders-covid-19-supplementary-memoaugust-6-
2020/>.
423
Chief Justice Geoffrey B. Morawetz, “Supplementary Notice to the Profession and Litigants in Civil and
Family Matters Regarding the Caselines Pilot, E-Filing, and Fee Payment” (last modified 17 June 2021)
online: Ontario Superior Court of Justice <www.ontariocourts.ca/scj/notices-and-orders-
covid19/supplementary-notice-september-2-2020/>.
424
Law Society of Ontario, “Frequently Asked Questions: CaseLines” (last modified 6 July 2021) online:
<lso.ca/lawyers/practice-supports-and-resources/practice-area/civil-litigation/caselines-frequently-
askedquestions#3-what-is-the-estimated-timeline-for-rolling-out-caselines—7>.
425
Family Law Rules, supra note 47.
426
Ibid at r 1(7.2)(i.1), 1(7.3.1).
427
Ibid at r 1.1; See also, Ontario, Log In, (last visited 23
August 2021) online:
<www.justiceservices.jus.gov.on.ca/MyAccount/screens/OneKey/login.xhtml?lang=EN>.
428
Family Law Rules, supra note 47 at r 1.1(1).
429
Letter from Attorney General Doug Downey to Federations of Ontario Law Associations (11 May 2021).
disclosure orders would be made automatically by the clerk of the court in every case in
the UFC, excluding child protection cases and applications for simple and joint
divorces.
430
Shortly following the World Health Organization’s announcement of the COVID-19
becoming a global pandemic, the Canadian Bar Association (“CBA”) created a COVID19
Task Force to evaluate the urgent and progressing issues of the delivery of legal services
caused by the COVID-19 pandemic.
431
On February 17, 2021, the CBA’s COVID-19 Task
Force released their final report which identified ways in which the justice system could
reposition how legal services could be provided during and after the pandemic to ensure it
remains accessible, current and dedicated to focusing on those pursuing justice.
432
Two
important themes emerged from this report. First, there will be no going back to the way
the justice performed prior to the pandemic. Second, the innovative technologies and
processes must be implemented to improve access to justice and not inadvertently prevent
it.
433
After examining recent reforms to the family justice system, particularly those
implemented in response to the COVID-19 pandemic, the changes appear to have
positively responded to earlier suggestions to make the family justice system more
accessible. However, it must be determined whether the changes made in creating the
current Ontario family justice system were the fundamental and bold changes required to
meet the expanded vision of access to justice identified by many.
IV. THE PRESENT ONTARIO FAMILY JUSTICE SYSTEM
So far, this paper has examined the key recommendations made to make the family justice
system more accessible, as well as the changes implemented in response to these
430
Ibid.
431
CBA, No Turning Back, supra note 65 at 3.
432
Ibid at 6 - 7.
433
CBA, No Turning Back, supra note 65 at 8.
recommendations. This section will consider whether the current system has resulted in
more meaningful access to justice, as well as what the recent changes to the system mean
for access to family law justice initiatives moving forward.
A. VALUABLE LEGAL INFORMATION AVAILABLE TO THE PUBLIC
The new and improved legal information services, such as the MIP, the FLIC, and
enhancements to the Steps to Justice website, allow for accurate, relevant and clear legal
information to be provided early in a family law dispute.
434
However, whether people are
aware of the existence of these services and whether they actually assist those seeking
information must be examined.
One disadvantage of the MIP and the FLIC is that they are only available at the local
courthouse. As a result, until they enter the courthouse, the public may not be aware these
services exist. While information about these programs are available on the Ontario
government website, it is difficult to find unless the individual knows exactly what to look
for.
Another concern is whether the information provided at the MIP and the FLIC is actually
useful. Farrow and Jacobs recently reviewed the Evolving Justice Services Research
Project (“EJSRP”) which investigated the effect of legal information provided to those in
the Ontario and British Columbia justice systems.
435
The project evaluated the effectiveness
of legal information in assisting people with every day legal problems over a three-year
period.
436
The Ontario MIP’s were part of this study. After review of the results from the
study and comments by its participants, Farrow and Jacobs found that individuals with
legal issues follow different ways to justice and therefore specific information is needed at
various points along the way.
437
They ultimately concluded that changes to the MIP, such
434
Farrow & Jacobs, supra note 12 at 195.
435
Farrow & Jacobs, supra note 12 at 192.
436
Ibid.
437
Ibid at 193.
as to the script and delivery of information to include videos and scenario-based role-
playing, are required in order for it to adequately help the users of family legal services.
438
While the improvements to the Steps to Justice website have undoubtedly provided the
public with easy-to-understand legal information, the public’s awareness of the availability
of these services also remains an issue.
439
If users of the family justice system do not have
access to the available legal information, it is as if the information did not exist at all. It is
therefore recommended that these services be promoted more effectively.
One cost-effective way to promote these services can be to inform all family lawyers about
the existence of these services so that they can direct both potential and existing clients to
it. Those who call into law offices seeking assistance from a lawyer but ultimately find out
they cannot afford to retain one can be directed to the Steps to Justice website for guidance.
Existing clients can also benefit from these services, which provide a solid foundation of
common legal concepts and terms. This allows the lawyer and client to spend more time
together, focusing on the complex and unique challenges of their case rather than simple
terms and information readily available online. This can also save the client money on legal
fees by allowing them to ask specific questions about their case and engage in more in-
depth discussions with their lawyer. Clients who receive specialized knowledge and
support from their lawyer may avoid the feeling of wasting money on legal fees.
The current infrastructure for the public's ability to access reliable, accurate, and easy-
tounderstand legal information is available as a result of recent changes. However,
following the results from the EJSRP, it is evident that more empirical research is needed
to determine whether the current informational initiatives actually provide the public with
what is needed to observe meaningful access to justice in Ontario.
438
Ibid at 202.
439
Landau, supra note 2 at 7-8.
B. EXISTING ALTERNATIVE DISPUTE RESOLUTION INITIATIVES
The federal and provincial governments are taking positive steps toward making the family
justice system more accessible with the use of ADR services. This can be seen through the
recent amendments to the Divorce Act,
440
Family Law Act
441
and Children’s Law Reform
Act.
442
Placing greater responsibility on legal practitioners for informing their clients about
the various ADR services available to them improves access to justice.
However, numerous challenges remain unaddressed by the new legislative initiatives,
preventing meaningful access to justice from being fully achieved. This includes the
inability to reach everyone who wishes to access the family justice system. While the
objectives behind mandating lawyers to advise their respective clients about the ADR
services is clear, the difficulty is that at least 50% of people continue to choose to represent
themselves.
443
As a result, not everyone can afford to seek legal advice from a lawyer, and
if the public does not seek legal advice, they are less likely to receive information about
ADR services that can assist them.
There is also no guidance from the governments regarding what information, and how
much information, the lawyer should provide when advising clients about ADR services.
Some lawyers may simply ignore this requirement, or provide very little information about
the services in order for clients to understand whether it will truly help them. Supplying
lawyers with handouts or a link to the government website to provide to their clients can
assist in ensuring the public receives consistent information about the ADR services that
are available.
Another challenge is the cultural shift that will be required from the family bar to increase
its use of ADR services. It is acknowledged that cultural change in the legal profession does
440
Divorce Act, supra note 72.
441
Family Law Act, supra note 73.
442
Children’s Law Reform Act, supra note 74.
443
Macfarlane, The National Self-Represented Litigants Project, supra note 2; Action Committee, A
Roadmap for Change, supra note 2 at 4.
not occur overnight. Scholars have proposed that reform begin at the law school level, with
the goal of developing negotiation skills early on in a way that promotes collaborative
partnership with all parties involved.
444
Creating a collaborative foundation for all family
lawyers early on in their education can assist in making a more meaningful family justice
system. However, if law schools do not require ADR training as part of its curriculum, then
the development of the “new lawyer” will be limited to only those who are interested. Until
then, family law practitioners will need to take the lead in advancing access to justice
initiatives.
445
Additionally, raising public awareness of the various ADR services available does not
change the fact that these services continue to be expensive for the vast majority of people.
Although the government has responded by providing free mediation at the courthouse,
these services are only available to people who have already filed a court action and are
only available on the day of a court date. While it is understandable that the government
cannot provide free mediation to everyone, only providing free mediation to those who
initiate a court action is illogical and counter-intuitive. It has been recognized that middle-
income earners require the most assistance,
446
therefore free mediation should be made
available to them without the need to initiate litigation.
The recent rise in virtual ADR services as a result of the COVID-19 pandemic can also
assist with the issue of cost. This has allowed for parties to retain mediators or arbitrators
from different cities with possibly cheaper rates and not having to pay for travel fees. As a
result, virtual ADR has provided an accessible justice system by responding appropriately
to the rise in family disputes caused by the COVID-19 pandemic by modernizing the way
ADR services are provided to the public. It is likely that the virtual nature of ADR services
will remain after the COVID-19 pandemic has ended.
444
Action Committee, A Roadmap for Change, supra note 2 at 15; Semple & Bala, supra note 30 at 17.
445
Action Committee, Court Processes Simplification Report, supra note 15 at 20.
446
Trebilcock, Duggan & Sossin, supra note 1.
On the other hand, the requirements to participate in the new Binding Judicial Dispute
Resolution pilot project do not result in a more accessible justice system. While the project's
intentions are good, the reality is that it cannot assist the vast majority of those in the family
court system who are in need of the project due to the unrealistic requirements that must
be met in order to be eligible. For example, the requirements include less complex cases
that do not involve witnesses other than the parties, where necessary financial disclosure
or other information has already been exchanged and where the parties substantially agree
on the facts.
447
Furthermore, the government has stated that due to time constraints, cases
requiring more than two to three hours of hearing time are not appropriate for the pilot
project.
448
Those who are eligible for the project are unlikely to be involved in litigation in
the first place.
Additionally, despite the recommendation to expand ADR services to include ODR,
nothing has yet been implemented in Ontario family law. While the CBA Task Force has
recently stated that any venture into online platforms in family law matters is difficult,
449
it
is still critical that ODR be considered as an additional family law ADR service in order to
help make the family justice system more accessible. The advancement of ODR in family
law may become necessary in order for the system to remain accessible to the public due
the reliance on technology in all aspects of their lives. It is acknowledged that some family
issues may be too complex to be dealt with through ODR, and that some people may lack
the technology or ability to fully participate in a digital justice system.
450
It is therefore
critical that barriers to an ODR service be identified and addressed before it is implemented
within the family justice system.
447
Morawetz, Binding Judicial Dispute Resolution Pilot Projects, supra note 79.
448
Ibid.
449
CBA, No Turning Back, supra note 65 at 15.
450
CBA, No Turning Back, supra note 65 at 15.
C. A MODERN FAMILY COURT SYSTEM
The recent changes to the family court system have made it easier to use and more
accessible. This includes the expansion of the UFC, which now has 25 locations across
Ontario.
451
The UFC and its case management function has fundamentally shifted the
judiciary’s role from adjudicative to settlement and management oriented. This has the
potential to greatly benefit those involved in the court system by reducing delays and
increasing savings for family litigants by assisting in narrowing issues and settling cases as
quickly as possible.
The most significant change to the family court system is the use of virtual court
appearances in all or any part of a family case, at the court’s sole discretion.
452
Once the
COVID-19 pandemic has passed, virtual court appearances should not be used for the entire
court process. Virtual appearances are appropriate for procedural, uncontested, and less
complicated matters. This includes first appearances before a clerk, speak-to court dates
and trial management conferences where the only issues being decided are the scheduling
of future court dates and timelines for production of documentation. Virtual appearances
are also appropriate for uncontested trials, short and urgent motions, and case conferences
as only procedural or consent orders can be made. Having these matters heard virtually
can reduce costs for family litigants because they no longer have to take a full day off from
work to attend.
The option of participating in a settlement conference virtually or in person should still be
made available on a case-by-case basis. This is because some cases have progressed more
quickly than others. Some cases, for example, are still awaiting significant financial
disclosure at the settlement conference stage, while others are ready for trial. Cases that are
trial ready at the settlement conference stage may benefit more from being held inperson
rather than virtually due to the formality and trial-like atmosphere that can be provided in
451
Ontario Superior Court of Justice, Family Proceedings, supra note 87.
452
Family Law Rules, supra note 47 at r 1(7.2)(i.1), 1(7.3.1).
the courthouse. This may give the parties a better idea of what a trial is like and assist in
the resolution of the matter.
The option of participating in a trial virtually or in-person should also be available on a
case-by-case basis. Trials are often days in length, contain numerous witnesses, sometimes
expert witnesses, and require substantial amount of documentary evidence to be exchanged.
Virtual trials can assist with these challenges, by allowing the court to better assess
credibility of witnesses more closely at a screen and accommodate schedules of the
witnesses.
453
Also, CaseLine’s has greatly assisted the court and litigants in managing the
heavy document load. However, some people can be uncomfortable with the technology
required, including navigating different screens and programs during a trial, and therefore
having a virtual trial may put those individuals at a disadvantage.
To ensure consistency across Ontario's family court system, the judiciary should establish
unified guidelines for what types of cases should be heard in person versus remotely.
Having guidance can help parties understand the circumstances under which the court will
or will not allow a matter to proceed remotely when making arguments to the court on the
issue. Providing the public with a court system that reliably and consistently manages each
family dispute will promote meaningful access to justice.
Despite not being mentioned in any of the prominent reports or scholarship on family law
reform, a document exchange system such as CaseLines can also facilitate access to justice
by improving the efficiency of the court. This reduces both costs and delays for the systems
users, and benefits marginalized members such as those living in rural communities and
SRL’s.
454
In Ontario family law, numerous documents must be exchanged, including
significant financial disclosure such as bank statements, income tax returns, and corporate
documentation. CaseLines has resulted in less paper and printing, easier access to files
online, and better management of evidence during motions and trials, whether held in-
453
CBA, No Turning Back, supra note 65 at 9.
454
Bailey, Burkell & Reynolds, supra note 2 at 195, 197-198.
person or virtually. It is unlikely that the court system will return to its previous method of
document exchange.
It is also hopeful that the suggestion for a standardized financial disclosure order at the
outset of each new family case will become a reality. This can help facilitate consistency
in the wording of orders across Ontario, and most importantly, reducing the amount of court
time required to bring motions against those who refuse to provide mandated financial
disclosure. This can also assist SRL’s in understanding their financial disclosure obligations
at the outset of their family case and prevent family professionals, such as opposing counsel
and judges, from providing legal advice to the SRL unintentionally.
D. CHALLENGES RESULTING FROM THE USE OF TECHNOLOGY
It is unrealistic to expect that increased use of technology in access to justice initiatives will
benefit all people affected by the family justice system.
455
Individuals who do not have
access to the internet or simply cannot afford it may be unable to participate in family
matters remotely, or may be forced to do so in public places where free Wi-Fi is available.
456
People with low literacy skills, mental disabilities, or visual or literacy impairments may
also have difficulty using technologies such as e-filing and interactive court forms.
457
Additionally, due to the substantial amount of confidential information relied on throughout
a family matter, the court’s recent reliance on the internet and virtual court appearances
raises privacy concerns.
458
Issues have also been raised about the virtual nature of the
courtroom, such as the potential loss of appreciation for the importance and civility of the
justice system, as well as the perceived disadvantages of advocating virtually rather than
in person.
459
These are just a few examples of how recent technological advancements in
the family justice system have shifted the public’s perception of the system in a negative
455
Ibid at 182; Morrison, supra note 70 at 15.
456
Bailey, Burkell & Reynolds, supra note 2 at 199.
457
Ibid at 196-197; Sourdin, Li & McNamara, supra note 119 at 450; Action Committee, Legal Services
Report, supra note 14 at 7.
458
CBA, No Turning Back, supra note 65 at 12-14.
459
CBA, No Turning Back, supra note 65 at 9- 10; Bailey, Burkell & Reynolds, supra note 2 at 203.
direction, with the public believing that access to justice is now out of reach for the majority
of people.
460
As a result, if the use of technology within the family justice system continues
to ignore the needs of the vulnerable community, it may exacerbate the access to justice
crisis.
461
CONCLUSION
The COVID-19 pandemic has unquestionably heightened the desire for an accessible
family justice system. It has also forced the opportunity to revolutionize the Ontario family
justice system in a way that can allow for real and substantial change. Ontario has moved
closer to having accurate, reliable, and easy-to-understand legal information as a result of
justice reforms through programs such as the MIP, the FLIC, and Steps to Justice website.
The recent federal and provincial legislative changes have also raised awareness of the
importance of providing ADR services to each family going through a separation. Most
importantly, the UFC and increased use of technology are simplifying and making the
family court system easier to use. However, while recent technological advancements have
brought us closer to improving access to justice in Ontario, drawbacks have emerged, and
certain vulnerable groups have remained disadvantaged.
The number of access to family justice initiatives continues to grow, and the practical
reform suggestions should compel key stakeholders and policymakers to pursue these
solutions forcefully. Nonetheless, the recommended courses of action for change needed to
make the Ontario family justice system accessible for all remains unfulfilled. The CBA
Task Force appropriately stated, “in the end, the secret of getting ahead is getting
started.”
462
Ontario has started, but positive change in its family justice system must
continue after the COVID-19 pandemic is over to ensure the most vulnerable people are
not left behind.
460
CBA, No Turning Back, supra note 65 at 6.
461
Action Committee on Access to Justice in Civil and Family Matters, “Tracking our Progress: Canada’s
Justice Development Goals in 2019” (2020), online (pdf): Canada’s Justice Development Goals
<www.justicedevelopmentgoals.ca/sites/default/files/canadajdg_report19_en_0.pdf> at 17.
462
CBA, No Turning Back, supra note 65 at 24.
