Recent Initiatives

The Ministry of the Attorney General of Ontario is undertaking a review of family legislation, regulations, and processes. The review will explore ways to simplify family and civil court processes, reduce costs and delays, and encourage the earlier resolution of disputes, including looking for ways to:

• direct family law matters out of a combative court process, where possible;
• reduce the cost of the process to families and taxpayers; and
• streamline the processes to shorten the time to resolution.

Click here to view the AFCC-O response.

For those that were unable to attend our research launch on April 25, 2019, we provide a copy of Dr. Rachel Birnbaum and Dr. Denise Whitehead’s presentation.

Mediation Research AFCC-O Launch April 25 2019

The AFCC-O provided financial and other support to our 2017-2019 research project on Court-based Family Mediation Services in Ontario. This project was undertaken by Dr. Denise Whitehead of the University of Waterloo and Dr. Rachel Birnbaum of King’s University College, Western University.  The project examined what works and what is not working with respect to court-based mediation services as well as private mediation in Ontario. The project began in the Fall of 2017, and we are pleased to provide a copy of  the final report.

This project has used multiple methodologies, including:

• A literature review on public and privately funded mediation to examine what has been done and what are the gaps in knowledge;
• A survey of Ontario professionals about mediation services:  The survey asked have questions related to both court-based and government subsidized mediation and private mediation. This survey had questions directed both to professionals who refer individuals to mediation (i.e. lawyers and counsellors) as well as a section for mediators; it distinguished between those doing publicly funded mediation, those doing private mediation and those doing both. There were 138 respondents: 95 were Mediators (69%) and 43 were Referrers to mediation services (31%);
• In-person interviews key informants: there were 28 interviews with 30 family justice professionals were completed;
• There were visits to mediation projects at eight court sites: Sudbury, Guelph, Windsor, Newmarket, London, and in Toronto at 311 Jarvis, 47 Sheppard, and 393 University);
• Interviews with 17 OCJ and SCJ judges at eight sites.

VIEW  “Supervised Access as a Stepping Stone Rather than a Destination” by Nicholas Bala, Michael Saini and Sarah Spitz (2016 research paper funded by AFCC-O).

On 22 May, 2018 the Liberal government introduced Bill C-78 to Parliament, which will, if enacted, amend the parenting provisions of the Divorce Act, the first significant change to this part of the legislation since it came into effect in 1986.   Bill C-78 will affect the making of orders and agreements concerning children and parenting, including provisions that will:

• abandon the archaic “custody” and “access” terminology now in the Divorce Act, introducing more child focused concepts like “parenting time” and “parental responsibilities,” that are to be incorporated into “parenting plans;”
• encourage parents and professionals to settle disagreements outside of the court process, using mediation or other collaborative processes.  However, they are not required by Bill C-78 to use such alternatives to the courts;
• encourage recognition of the importance of one parent supporting their child’s relationships with the other parent;
• specifically address issues of family violence, requiring courts to consider the effects of spousal abuse on both the immediate victims and the children;
• provide that the views and preferences of children should be considered by decision-makers: children must have a voice, but not necessarily a choice; and
• change the law governing cases where one parent wishes to relocate.

There are likely to be Parliamentary hearings on Bill C-78 in the Fall 2018, with enactment likely by the Winter of 2019.  However, there is never certainty about the process of enacting legislation.  There are contentious issues, including proposals for the inclusion of a presumption of “equal parenting time,” which is not in the present Bill.

See AFCC-O Response to Bill C-78 to view AFCC-O’s submissions to Canada’s Minister of Justice and Attorney-General, The Honourable Jody Wilson-Raybould, September 10, 2018.

See  Bala Divorce Reform June 2018 for a discussion parenting provisions of Bill C-78, and an argument against a presumption of “equal parenting time”.

See John Boyd Overview of Bill C78 – Pt 1 – June 2018 – A summary of parenting provisions of Bill C-78.

See John Boyd Overview of Bill C78 – Pt 2 – June 2018 –  A summary of other provisions of Bill C-78, including provisions relating to support issues, interjurisdictional agreements and treaties.

There has been a significant increase in the number of self-represented family litigants, which causes concern for these individuals, their children and the family justice system. Data suggests that in over half of the family cases in Canada’s courts, one or both parties are without a lawyer. Inability to afford full representation by a lawyer is the single biggest factor, but other reasons include the rise of “do it yourself” social attitudes, increasing availability of self-help information from family justice institutions, and a perception among some self-represented litigants that having a lawyer may not result in a significantly better outcome.   The AFCC-O is a partner in the Ontario Family Law Limited Scope Services Project which is an important initiative to help improve access to affordable family legal services.

For more information see Ontario’s Family Law Limited Scope Services Project

The Challenge of High Conflict Family Cases Involving a Child Protection Agency: A Review of Literature and an Analysis of Reported Ontario Cases – By Claire Houston and Nicholas Bala, February 17, 2015

Increasingly, custody/access cases are colliding with the child welfare system, with children being found in need of protection as a result of parental separation involving high-conflict, and accusations of child protection concerns about each parent, etc. Part I of this research project explored the social science and legal literature, including case law in the last five years detailing the intersection between these two systems. Part II of this research involved qualitative interviews with child welfare professionals including front line and managers, as well as justice professionals in the court system about how the courts respond to the intersection between family and child welfare.

Ms. Houston and Prof. Bala have completed phase II of this study which involved a series of interviews with key informants, and recommendations for best practices for these cases.

Child Welfare and Family Justice Suggestions for Good Practices-Houston & Bala May 2-16