Tag Archives: family dispute resolution

Access to Family Dispute Resolution processes should start in the community and should remain within the community!

Laura Catone-Tarcea

The way we treat the most vulnerable members in our community is the truest reflection of how caring a community we are.

It is now estimated that about 60% – 80% of family law litigants are unrepresented. Many of these families cannot afford representation. The court system can be a difficult, lengthy and unpredictable process. It often increases the intensity of conflict between family members, leaving them financially and emotionally exhausted. For low and middle income families, access to justice is even more challenging.

The time is now, for effective change! Community-based family dispute resolution (C-FDR) is in many situations a viable, if not the only practical (affordable) alternative to a court-based process. Unfortunately, this type of service is almost non-existent across Ontario and many families are falling through the gaps. In the following paragraphs, I intend to highlight the dire need for investment in this service, to become an essential and primary community service.

Sadly, conflict has become a norm in life – it abounds. Yet all too often, access to alternate means of resolution is only accessible to those of financial means. These alternative mechanisms are rarely accessible to the lower/middle classes, and to those with mental health challenges or of different cultural backgrounds. It is these – the majority of the people that stand to lose the most, ending up struggling to find resolution within an overcrowded and very unfriendly legal system. Factors such as money, power and control, eclipse the need to create attainable, culturally and linguistically appropriate processes for families within their very own communities.

Community leaders are all too often vocal about supporting and advocating programs that promote safety, “connectedness” and growth. As well, governments provide funding for projects aimed at improving access to justice, increasing public awareness and removing barriers to accessing the family justice system. And yet, despite all these “efforts,” these services are most times lacking in true humanity. I urge you to reflect on the rigidity and limitations of our current “access to justice services” which, in many cases, act as the very stumbling blocks to incorporating the very core of humanity and fluidity!

In all families, and in fact in all communities across the world, fluctuation, change and fluidity are the main ingredients of daily life and growth. Change, particularly in family dispute resolution, is a given, and yet our social services barely allow for it. Au contraire, change has become a frightening concept; a destabilizing factor, which our current family justice system is holding onto as its status-quo. Please understand: I am not purporting that all change is good. Change and adaptation to change are part of our human endeavours and should be widely accepted and appropriately accounted for rather than becoming a trigger for implementation of punitive-like measures. In most court orders, change is rarely encouraged and often penalized. As result, the human characteristic is being suppressed, growth is stunted and tension and frustration become the new human status-quo. Instead of focusing on our humanness, we allocate enormous amounts of resources in focusing on “enforcement.”

We treat conflict in a similar fashion. While conflict is inevitable, instead of equipping community members in developing skills for peaceful resolution, considerable funds are being allocated to agencies that will dictate the manner in which conflict is to be resolved, thereby denying community members any potential for developing this fundamental skill set. As well, ownership and responsibility of conflict, instead of resting with its community members, is by default, externalized and placed in the hands of “quasi-experts” who have the power to exercise control that may not necessarily be in the best interests of the families.

Family mediation is not a natural extension of our legal system. Nevertheless, our current family justice system is designed by lawyers – for lawyers (who become judges), resulting in family mediation simply being an extension of the law model. Respectfully, it is submitted that it is families who ought to be the experts and it is they who should be at the centre of designing FDR systems. We need to begin to learn and to listen to families and structure services that are reflective and inclusive of this understanding. The current approach to family [and ‪‎access to] justice is not meeting the diverse needs of the very families it is meant to serve. We need to establish family dispute resolution services that are accessible, affordable and help community members (especially the vulnerable ones) maneuver with ease in investing in the growth and well-being of our communities. The deliverance of FDR services has to become culturally and linguistically appropriate and representative of the community it serves. We don’t only need “better” services in the FDR field. We need to adopt an entirely new framework to better resemble humanity and to uphold dignity. It is respectfully proposed that a holistic, multidisciplinary and community-based approach needs to be at the core of this framework.

Divorce/separation does not only affect the partners in the relationship, it extends wide – to children, extended family members and the community at large. Being informed about separation/divorce and the legal family process is necessary and relevant public education that should be easily accessible to all members of a community, including those who are not going through separation. Education and information at an early, neutral stage is crucial if community members are to become empowered, in order to make better choices for themselves and their families. While there are court-connected mediation centres across Ontario (albeit for limited hours), these are operating directly under and within Ontario’s justice system with strict rules and guidelines that often prohibit citizens from accessing the services. Barriers such as educational background, financial means, language or mental illness make accessing court-connected mediation centres an almost impossible and highly frustrating option. In addition, the lack of trust in the judicial system prevents many from accessing these services. Unfortunately, court-connected mediation is the only point of entry for individuals in the low and middle income brackets, while higher income people can choose from a wide range of out-of-court family dispute resolution processes. We need to take a hard look at and resolve this gross imbalance and inequality. Not only are we denying the right of choice, but we are placing these people and their children at risk of harm with conflict “escalation.” All individuals, no matter their income level, culture, gender or race, must equally and justly be provided with similar access to quality services and the right of choice.

If we are serious about preserving and fostering human “connectedness”; if we want to improve access to justice for families who are going through divorce or separation; if we want to provide quality family-centered dispute resolution services and the right to choice, then we need to empower our communities! We need to begin to prioritize establishing and maintaining family dispute resolution entry points – starting right within our communities.

In conjunction with adopting a family-centered approach, instituting well organized and funded FDR services outside of the court system will:

  • reduce considerable governmental costs associated with failure to resolve family matters in a timely and cost effective manner
  • benefit courtsby triaging and reducing the number of unrepresented individuals
  • enhance community viability and promote interdisciplinary collaboration among family support professionals
  • inform and educate the public of effective and creative conflict resolution alternatives
  • improve access to justice and enhance community togetherness
  • prepare and equip future generations with invaluable conflict resolution skills

The time is now to take the right steps in bringing justice, fairness and equality to our neighborhoods 

Read Why the Mandatory Information Program established by the Ministry of Attorney General should be accessible BEFORE COURT (the choice is yours!)

 

YOU HAVE THE RIGHT TO KNOW YOUR OPTIONS EARLY

The Impact of Family Mediation and Resource Centre’s (FMRC’s)
Family Law Information Sessions (“FLIS”)

YOU HAVE THE RIGHT TO KNOW YOUR OPTIONS EARLY

The Ministry of the Attorney General of Ontario has established Mandatory Information Programs (MIPs) throughout family court locations across Ontario, providing attendees with general information about separation/divorce and the legal process. These sessions must be attended within 45 days from the start of a case.

What makes FMRC’S FLIS so different? The MIP sessions are instituted after a court application is instituted. FLIS recognises that court may not be the only route to follow. We recognize that without knowledge – without first having legal information, on the effects of separation and divorce on adults and children; alternatives to litigation; family law issues; the Family Court system and local resources and programs, people are committed to a system that they never have wanted in the first place. We believe it is important that families be provided information beforehand, at an early, neutral stage of the separation process and before families launch out in a very unfriendly and most often destructive court case.

Information is crucial for community members to become empowered, in order to move forward in separation. Divorce/separation does not only affect the parties directly involved, but their child(ren) and extended family members. Being aware of information about separation/divorce and the legal family process is necessary and relevant public education which should be easily accessible to all members of a community, including those who are not going through divorce.

FLIS sessions aim at enhancing knowledge, decreasing conflict and instilling respect by allowing people a right of choice:

a. They are offered right within the community

FLIS sessions take place in familiar settings, such as libraries and community centres, as opposed to the informality of a courthouse. This affords an opportunity for community members to learn about alternate ways of proceeding, such as by family dispute resolution processes. Court may not be the only solution! There is a new wave of people settling family law matters through negotiation, Mediation, Mediation-Arbitration and the Collaborative Process. Sadly, once in the court system, options become very limited.

b. It is offered prior to starting a court case.

Going to court is no panacea! It can only increase conflict. The adversarial system drives a sharper wedge between people; those who are already somewhat traumatized by a breakdown in an intimate relation.

Access to knowledge prior to entering the court system will enhance parties’ ability to link with and effectively use appropriate public resources while preventing “revolving door” effect.

c. It’s voluntary versus mandatory.

Whereas mandatory format focuses on attendance, voluntariness allows parties to focus on the information at hand. As result, parties may be less tense, less stressed and less resistant.

Having the choice of researching suitable options versus being ordered into attendance, may be empowering and help in preserving a person’s sense of dignity. It may play a crucial role in increasing a person’s sense of self-direction and responsibility for the situation. As well, it will save time and money for everyone involved while establishing trust and respect for the judicial system. Finally, parties may be more likely to reach a child-focused and long-lasting agreement, which can only prevent long-term damage.

Laura Catone

“Participation in collaborative proceedings such as mediation tends to not only decrease the intensity of conflict below the level brought to them by separating parties but also to improve the quality of post-separation relationships between them…”(Ellis, 2014)

“…(“going to court”) increases the intensity of conflict beyond the baseline level of intensity that separating/divorcing parties bring with them to family court.” (Ellis, 2014)

“…adversarial family law system “appeared to encourage couples to become adversaries to a greater degree than they already are….to aggravate relations with the spouse…and to upset and humiliate people” (pp.214-215).” (Ellis, 2014)

 “…most couples who bring their disputes to family court do not need to and do not enjoy, or ultimately benefit from, the experience. I would go further and suggest that in many cases, the parties’ ability to communicate and co-operate with each other as co-parents became worse, not better, as a result of family court litigation.” (Brownstone, 2009)