Understanding Pathways to Family Dispute Resolution and Justice Reforms: Ontario Court File Analysis & Survey of Professionals

• DOI: http://doi.org/10.1111/fcre.12236
• Published date: 01 July 2016
• Author: Brenden McLarty,Michael Saini,Rachel Birnbaum,Nicholas Bala
• Date: 01 July 2016

UNDERSTANDING PATHWAYS TO FAMILY DISPUTE

RESOLUTION AND JUSTICE REFORMS: ONTARIO COURT FILE

ANALYSIS & SURVEY OF PROFESSIONALS

Michael Saini, Rachel Birnbaum, Nicholas Bala, and Brenden McLarty

This article reports ontwo related studies about varying pathwaysto the resolution of family disputes and the effects of family

justice reforms inOntario: a survey of family court professionals (n5118) and an analysisof 1,000 closed court files of family

cases involving children. Both studies reveal that the vast majority of cases are resolved without a trial, often by negotiation.

While professionals generally support family justice reform initiatives, there remain significant gaps in the implementation of

these strategies. For example, many litigants do not attend information programsdespite the requirement for mandatory attend-

ance; thereis limited use of mediation; the viewsof children are being soughtin only a small number of cases; andthere is a large

proportion of self-represented family litigants. Despite the increase in shared care and joint decision-making arrangements, a

majority of cases in thecourt file study were sole custody arrangements to the mother, whether the case was settled orresolved

by trial. Mediationwas associated with greatertime of contact with the non–primaryresidential parent (usuallythe father).

Key Points for the Family Court Community:

The vast majority of cases where court files are opened settle without trial, usually through negotiation, often facilitated

by a judicially led conference.

While most lawyers settle a vast majority of their cases, a small group of lawyers resolves many of their cases by trial.

In this Ontario study, many litigants fail to attend parenting education programs even when attendance is mandatory.

Use of mediation was limited but associated with greater time of contact with the non–primary residential parent (usu-

ally the father);

Views of children from independent sources are available in a small proportion of cases.

Keywords: Access to Justice; Child Custody; Divorce; Family Courts; Family Law; and Family Mediation.

INTRODUCTION: THE RATIONALE FOR STUDIES OF PATHWAYS

TO FAMILY DISPUTE RESOLUTION

When parents separate, or if they have never cohabited when they are making arrangements for

the care of their children, there are many different ways that they can resolve issues and make plans,

ranging from having an informal oral agreement, to signing a written agreement negotiated with the

assistance of lawyers, a mediator or judge, or having a court impose a legal regime as a result of a

trial. The pathway that a family follows will be influenced by both the institutional context, notably

the procedural and substantive laws and public services available in their jurisdiction, as well as indi-

vidual factors, such as the private resources available and degree of conflict between the parents. It is

often argued that greater access to certain methods of dispute resolution, in particular mediation, may

result in less expensive dispute resolution and better outcomes. However, there is little research into

the critical questions of why individual cases are resolved in a particular way, and what are the poten-

tial long-term costs and benefits of following different pathways to dispute resolution. There has

been very little research or professional commentaries exploring the role and attitudes of different

professionals that families may encounter, and their effect in steering a family to a particular path to

resolution. In many jurisdictions, there are not even good data on what proportion of cases are

resolved using different methods of dispute resolution.

Correspondence: michael.saini@utoronto.ca, rbirnbau@uwo.ca, bala@queensu.ca, brendan.mclarty@mail.utoronto.ca

FAMILY COURT REVIEW, Vol. 54 No. 3, July 2016 382–397

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C2016 Association of Family and Conciliation Courts

From both practice and policy perspectives, family justice professionals (i.e., lawyers, judges, media-

tors, and mental health professionals) and policy makers need to know more about which responses are

the most effective for timely resolution of family disputes and for promoting positive short and long-term

outcomes for families. The limited research is unable to test the efficiency of court-based services for

resolving family disputes, and there remains limited evidence on the effects of the use of different serv-

ices, such as: parent information programs; mediation and parenting coordination (Henry, Fieldstone, &

Bohac, 2009); views of the child reports (Birnbaum, Bala, & Boyd, in press; Williams, 2006); child cus-

tody and access assessments (Bala, 2004); child legal representation (Bala, Birnbaum, & Bertrand, 2013;

Birnbaum, 2005; Birnbaum & Bala, 2009); and collaborative family law (Tessler, 2008). While there has

been more research on the value of mediation (see, e.g., Emery, Laumann-Billings, Waldron, Sbarra, &

Dillon, 2001; Rhoades, 2010), less research has focused on comparing the use of negotiation or litigation

with mediation as methods of resolving family disputes (Hunt & Roberts, 2005). There is no empirical

research on the reasons that individual family justice professionals decide to advise parents to use particu-

lar dispute resolution approaches for different cases. Most significantly, we do not know which services

and responses are likely to be helpful for children or their parents, and whether the value of particular

responses to family dispute resolution is affected by the type of case or such factors as the level of conflict

(Hughes & Kirby, 1999; Hunt & Roberts, 2005; Sigal, Sandler, Wolchik, & Braver, 2011).

In the 2013 and 2014, a number of reports and discussion papers were released in Canada calling

for fundamental reforms to the family justice process, in particular advocating greater emphasis on

dispute resolution outside the court, earlier more effective interventions and improved access to fam-

ily justice, as well as more research (Action Committee on Access to Justice in Civil and Family

Matters, 2013a, 2013b; Law Commission of Ontario, 2013a, 2013b; McFarlane, 2013; Semple &

Bala, 2013; Advocates’ Society, 2014). Despite these reports, government action and response has

been slow, in part because there is a lack of consensus among researchers, stakeholders and profes-

sional groups about how, when, and for whom to provide specific services and more importantly

about how they will be funded. The lack of research and even basic statistical family justice data

poses significant concerns, given the potential negative effects of separation on children and families,

and the substantial expenditures of resources on different services by both governments and private

individuals.

As part of a broader research agenda exploring processes and outcomes

1

in the family dispute

resolution process, this article reports on two related studies that explore pathways to family dispute

resolution in Ontario, with a particular focus on the effect of the governments family justice reforms

undertaken starting in 2010. The two studies discussed in this article are intended to increase under-

standing about how professionals make decisions about referral of clients to different services.

Part II of this article describes the range of government-funded family justice services available in

Ontario, including a description of the 2010 reforms that were intended to increase information available

to litigants, especially the growing numbers without lawyers, and to encourage consensual dispute resolu-

tion. Part III discusses the methodology and compares the results of our two related studies. The first

study is a survey of Ontario family justice professionals (n5118) regarding different methods of family

dispute resolution, and the perceptions of these professionals about different programs, court services, and

interventions. The second study is an analysis of 1,000 closed family court files from two sites in Ontario

in cases where the parties had children. The integration of this parallel mixed-method analysis provides a

rich and nuanced understanding of these complex issues. Part IV concludes with a discussion of the limi-

tations of the two studies, and the implications for family justice service provision and reform, as well as

identifying questions for further research.

THE ONTARIO FAMILY JUSTICE PROCESS AND THE 2010 REFORMS

As in many other jurisdictions, there has been a significant growth of programs and court services

for separating families in Ontario over the past decade (Birnbaum, 2009), but government fiscal con-

straints and changing expectations of family litigants are also creating increased pressures on family

judges, lawyers and service providers. There has been a marked rise in the number of self-

Saini et al./ONTARIO COURT FILE ANALYSIS & SURVEY OF PROFESSIONALS 383