by Noel Semple and Nicholas Bala
(2013) Report commissioned by the Association of Family and Conciliation Courts, Ontario Chapter. 20,000 words.
Also available at: http://ssrn.com/abstract=2366934
This Report summarizes research about justice system responses to family disputes, makes recommendations for government action based on that empirical evidence, and identifies some as yet unanswered system design questions requiring further study. This document is provocative as it is premised on a realistic appreciation of the nature of family disputes and the limits of government action, especially in the present fiscal environment, and the fact that there are issues related to family justice that research has not adequately addressed and hence development of public policy must be undertaken in the face of uncertainty.
There are interrelated challenges in addressing the problems in the family justice process, not only for governments, but also for the professionals who work in the justice system. There are issues related to laws, structures and policies that governments need to address, as well as issues of professional culture and practice that need to be addressed by legal educators, professional organizations and individual practitioners. There is, however, also a need for a realistic appreciation of what can be done to better resolve family disputes, both in terms of what any programs, policies or professionals can do to reduce the stress and suffering that is a common feature of these cases, and in terms of the resources that governments can and will commit to dealing with these issues given present fiscal realities.
This Report focuses on measures that governments, in particular in Ontario, should be undertaking to improve access to family justice and the functioning of Ontario’s family justice system. The Report especially considers how empirical research informs how the government should respond to family relationship breakdown. Part 1 of the Report identifies the criteria by which the efficacy of separation-related interventions should be evaluated. It is argued that three processes are most clearly demonstrated to be effective in achieving these goals. These responses are then discussed in detail: enforced adjudication (Part 2); mediation (Part 3); and providing information to those involved in family disputes (Part 4). The Report considers each of these three responses, identifying evidence of their efficacy, alternative ways to provide them, ways to improve their delivery and their limitations.
Knowing that these three things work leaves several important questions unanswered, and Part 5 identifies and discusses these challenging issues. These are questions for which, to this point, research has not adequately determined clear answers. Should services be delivered under a triage model, or through tiers? To what extent should the state seek to consolidate and simplify separation-related services? In what circumstances should users be required to pay for family justice services? Should adjudicative functions and settlement-seeking/relationship-building functions be kept in separated spheres, or brought together?