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«Best Practices at Family Justice System Entry Points: Needs of Users and Responses of Workers in the Justice System CONSULTATION PAPER SEPTEMBER 2009 ...»

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LAW COMMISSION OF ONTARIO

COMMISSION DU DROIT DE L’ONTARIO

Best Practices at Family Justice

System Entry Points: Needs of

Users and Responses of Workers

in the Justice System

CONSULTATION PAPER

SEPTEMBER 2009

Available online at www.lco-cdo.org

Disponible en français

ISBN: 978-1-926661-09-4

Best Practices at Family Justice System Entry Points: Needs of Users and Responses of Workers in the Justice system Launched on September 7, 2007, the Law Commission of Ontario (LCO) is a partnership among the Law Foundation of Ontario, the Ministry of the Attorney General, Osgoode Hall Law School and the Law Society of Upper Canada, all of whom provide funding to the LCO, as well as the Law Deans of Ontario’s other law schools. It operates independently of government.

The LCO has a mandate to recommend law reform measures to increase the legal system’s relevance, effectiveness and accessibility; to clarify and simplify the law; consider technology as a means to enhance access to justice; and stimulate critical debate about law and promote scholarly legal research. Its mission is to become a leading voice in law reform. The LCO’s core values are independence; integrity; excellence; innovation; relevance; open-mindedness;

transparency; diversity; inclusiveness; multi/interdisciplinarity; collaboration;

pragmatism; efficiency and accountability. As stated in its strategic plan, “the LCO is premised on a vision of law reform as a creative yet pragmatic endeavour.” Chosen LCO reform projects reflect this vision.

The following student researchers contributed to this paper:

Ada Ho, Osgoode Hall Law School Nazila Rostami, Osgoode Hall Law School Tiffany Silas, The University of Maryland School of Law Law Commission of Ontario Computer Methods Building Suite 201, 4850 Keele Street Toronto, Ontario, Canada M3J 1P3 Tel: (416) 650-8406 Fax: (416) 650-8418 General E-mail: LawCommission@lco-cdo.org www.lco-cdo.org September 2009 Law Commission of Ontario Best Practices at Family Justice System Entry Points: Needs of Users and Responses of Workers in the Justice system

TABLE OF CONTENTS

SEPTEMBER 2009

I. INTRODUCTION

II. BACKGROUND ABOUT THE PROJECT

A. What is the Project About?

B. Methodology and Timeline

III. KEY TERMS

A. Family Justice Process

B. Entry Points

C. Users and Clusters of Problems

D. Workers and Silo Problems

IV. WHAT OTHERS HAVE DONE OR ARE CURRENTLY DOING................10 V. POSSIBLE RESPONSES

VI. CONSULTATION QUESTIONS

A. Users

B. Workers

C. Family Law Lawyers

Questions for All

VII. HOW TO PARTICIPATE

ENDNOTES

–  –  –

I. INTRODUCTION

This fall, the Law Commission of Ontario (LCO) is conducting public consultations about family justice. These consultations are part of the latest LCO family justice project entitled “Best Practices at Family Justice System Entry Points: Needs of Users and Responses of Workers in the Justice System.”1 Consultations seek to identify where people go to try to solve family challenges or problems and what services help them navigate through the complicated Ontario family justice system. The aim of this project is to contribute to ongoing efforts at improving the family justice process across the province by focusing on the early stages of this process.

This consultation paper provides background on the LCO family justice project and consultation methodology. It describes other projects related to the LCO project. It raises questions to which the general public as well as stakeholders in the family justice area are invited to respond.

As a family justice system user or worker, you will find information in the last section of the paper about how to participate in consultations. You may collaborate with the LCO to plan user or worker group consultations at your organization or in collaboration with others. You may also send us a submission. Our goal is to generate discussions that will be mutually beneficial.

II. BACKGROUND ABOUT THE PROJECT

This is not the first LCO family justice project. The LCO did a previous project about pension division at marriage breakdown.2 This is also not the first LCO family justice public consultation.3 In fact, previous consultations were held to identify what area of family justice the LCO should focus on: these were instrumental in the LCO’s selection of this project. Many respondents expressed the need to focus on process as opposed to substantive law issues. The LCO therefore decided to design a project that would

–  –  –

address one of the most crucial stages of the family justice process: the beginning. The following sections describe the LCO project, methodology and timeline.

A. What is the Project About?

The LCO project explores the early stages of the family justice process. The best way to understand what the LCO means by “early stages” is to put yourself in the shoes of someone who has just faced a family challenge or problem. Family challenges include planning an intimate relationship according to Ontario law; learning about Ontario family property law prior to marriage and discussing possible arrangements without hurting the relationship; or planning a relationship when spouses do not live in the same country, for example. Family problems include separating from an intimate partner; managing care giving responsibilities towards children post-separation; having a child removed from one’s care; facing violence from a family member; and trying to break financial and emotional dependency patterns from a spouse. With these examples in mind, the first question you might ask is: “Where would someone facing each of these different scenarios go to get help?” To answer this question, you need to identify people’s needs and the services that are available to them. You also need to look at family justice in connection with other social and health services. This is what the LCO means by the early stages of the family justice process. The LCO therefore seeks to develop a holistic approach to the early stages of the family justice process and consider not only its legal dimensions but also other dimensions.





As the above scenarios demonstrate, questions arise at any time and stage of family formation and development. Early on, family formation already involves many legal and emotional challenges. These challenges can, for example, be related to formalizing a relationship through contract or simply cohabiting with an intimate partner. At this stage, part of the challenge may be to overcome the fear of emotions that may arise if legal issues are raised (how family finances and care giving responsibilities will be organized, for example) and of emotions involved in resolving them. Family justice issues can also arise at a later stage, when couples decide to have children or when intimate partners start feeling that they do not get along anymore and cohabiting becomes difficult. Single persons may also face family challenges, such as when they explore adoption possibilities. In this context, it is important to distinguish between the time at which family challenges or problems arise and the early stages of resolving them.

–  –  –

In addition to their potential to emerge in good as well as bad times, family difficulties have particular characteristics. They tend to be charged with emotions and at the heart of people’s identities. Family relationships can involve various levels of proximity and dependency. They can be tense because of money or lack of money. In short, they require specific solutions. Although everyone is vulnerable to family problems, this does not mean that all families are the same or that families are fixed. On the contrary, they are constantly changing. Over the past decades, the concept of “family” has shifted, cultural familial practices have become diverse, the boundary between public and private has become far more permeable, the roles of family members have changed and the expectations of family members have reflected changing expectations in society generally.4 It is difficult for the family justice system to adapt. The solutions envisioned by this project need to be specific, but also pluralist and flexible in recognition of different needs among users and different skills required by justice workers.

B. Methodology and Timeline

As in any LCO project, this project will involve both research and consultations. During consultations, the LCO invites both individual members of the public (users of the family justice system) and organizations or professionals who provide services to the public in Ontario (workers in the family justice system) to participate. As this project is closely connected to users’ needs and habits in accessing the family justice system, user participation is extremely significant. The LCO therefore invites family justice system workers to share their knowledge but also, if possible, to help reach out to and organize consultations with particular user groups. Consultations may take place in person, by conference call or by other means of communication.

The project will be conducted in three phases:

1. Public consultations will take place from September to December 2009.

2. The LCO will compile consultation results, conduct further research and consultations during the first half of 2010.5

3. Finally, the LCO will release its final recommendations and report in November 2010.

–  –  –

This paper is designed to guide consultation participants through phase 1 of the project.

However, at any time, Ontarians and Ontario-based organizations are encouraged to contact the Project Head6 to discuss their preferred way to participate in these consultations.

In terms of consultation methodology, the LCO’s approach towards users and workers will be different. In the case of users, the LCO will use a narrative approach. In other words, the LCO will invite Ontarians to tell their stories. It will ask Ontarians to focus on a limited time frame to tell their stories: from the moment they faced a family issue to their first contact with what they consider to be the justice system. The LCO will also invite users to share what they learned from their experiences as well as their analysis of the current family justice system.

In the case of workers, the LCO will adopt a practical and self-reflective approach. It will ask workers to think about how users learn about their services and what steps users take before getting to the point of using their services. It will also ask workers to evaluate whether their services can be considered family justice system “entry points”, which will be discussed in the next section. In addition, the LCO will ask workers to draw a map of how they are connected to other workers in the family justice system and related social and health services.

In consulting with users and workers, the LCO will pay particular attention to how these individuals are situated in terms of their identity characteristics such as gender, sexual orientation, race, class, culture, religion, language, Aboriginal ancestry, age, ability and geographical location.7 With both user and worker perspectives in mind, combining their respective paths and roadmaps, the LCO will explore what already existing or new routes can lead to more effective and efficient early intervention in the area of family justice. In short, based on both research and consultations, the LCO will identify best practices that can help workers better respond to users’ needs.

III. KEY TERMS

This consultation paper uses key terms in a broader sense than is usually understood in the legal world. These key terms include “family justice process”, “entry point”, “user” and “worker”. It also uses images such as “cluster of problems” and “silos”. The next

–  –  –

subsections will explain what the LCO means by these key terms in the context of this project.

A. Family Justice Process “Family justice process” can be defined in many ways. It can be narrowly understood as the family court process. A slightly broader understanding may include court-related services such as court-based information and mediation services, as well as out of court processes involving lawyers such as collaborative law. However, a much broader understanding of the family justice process involves every step that needs to be taken, including the thought process, for someone to identify and resolve a family challenge or problem that has a legal as well as other dimensions, to come to have a sense of closure in terms of its resolution and a feeling that justice has been done. This definition forces us to think about people’s informal networks, about connections between social, health and legal services and about barriers to access to justice more generally. As stated above, the LCO will concentrate on the “early stages” of this more broadly defined process.

B. Entry Points



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