Family Justice Services Western
4.1 Family Justice Services Western has assisted many families in addressing separation and divorce issues. It has also raised the overall level of quality of family justice services available to residents in its delivery area.
FJSW can be seen to have substantially achieved its goals and objectives to date. It provides a humane, efficient alternative to traditional family law services. It prepares people to address legal and non-legal issues associated with separation, divorce and child support and empowers them to make their own agreements, while working to ensure that their legal rights are protected and enhanced. The program results in more favourable outcomes for clients and better use of court and Legal Aid services. It also appears to do so within an environment which promotes children's interests as paramount.
As a pilot project, FJSW has endeared itself to key groups (e.g. judges, private bar, Legal Aid, community agencies, courts), and has developed substantial credibility, especially when one considers its brief life span. It has contributed to a better range of options in resolving family disputes than were in place prior to its inception.
The program would benefit from more efforts on the part of FJSW to obtain information from corollary agencies, tracking their activities in relation to FJSW. Courts could track time spent on family matters, consent orders filed and time elapsed between application and resolution. Legal Aid could document and more clearly track the change in workload as a result of FJSW.
4.2 The program has been utilized at or near its capacity, given current resources. This has implications for service expansion across the region.
The program's capacity to serve the demand in its current service area is sufficient at present, but with little or no flexibility. Increased demand, through either expansion or increased interest and utilization within the current area, will tax the existing resources and may impact on service quality.
4.3 The integration of mediation, SASW, education and counselling has resulted in an effective model for service delivery.
The range of services provided by FJSW allow for a holistic, person-centred approach to be taken in service delivery. The combination of resolution services with education and counselling appears quite potent in addressing client concerns. Clearly, the whole is greater than the sum of the parts in this program.
In moving forward, the counselling and dispute resolution staff have been exploring the collaborative possibilities of their roles. They have more recently been examining boundaries as well. It will be important to capture this dialogue and learning, as the relationship is both invaluable and potentially vulnerable to blurring on both sides. The need to keep counselling distinct as a support to, but not primarily in service of, dispute resolution, will be important to monitor.
4.4 Family Justice Services Western has benefited from a strong champion and steering committee and a dedicated and competent staff.
As with many new services, it is difficult to separate out the success that can be attributed to a model from that owing to the people involved. This is especially the case with respect to FJSW. The program has blossomed through strong vision and leadership, and competent and dedicated staff who are highly engaged in their work. The community environment of delivery has been a positive factor in this instance, but it is not clear that it is essential, or easily replicable.
The composition of the FJSW Steering Committee should be expanded to include other key players (e.g. court officials, support enforcement officials, consumers, women's groups). This will enhance the breadth of the existing group.
The staff of the program has demonstrated an individual and collective capacity to develop, refine and implement the FJSW model, in collaboration with the steering committee. Much of the success of the program is directly attributable to having the
"right people" in these positions.
4.5 Some reflection is needed regarding the
"branding" of services and positions under FJSW.
The range of dispute resolution techniques utilized under FJSW (including both the mediator and the SASW) is effective. The service needs to re-evaluate its use of the term
"mediation" to describe this activity, which is broader in scope and involves a range of alternative dispute resolution (ADR) approaches. The term generally implies a certain form of ADR, and much, if not most, of the ADR activity under FJSW is not mediation in its formal sense. Similarly, the terms lawyer-mediator and Support Applications Social Worker need to be reconsidered. While the program may continue to hire lawyers as mediators, the term implies they are providing legal services, which clearly is not the case. The SASW for the program is assuming more of a dispute resolution role in custody and access matters, so this title is also not accurate.
4.6 The Family Justice Service Western project presents a number of interesting policy considerations. These will need to be addressed from a provincial perspective as future delivery is contemplated.
As the province contemplates its future approach to family law services, the experiences of FJSW are important to consider. Some of the policy issues surfacing through the project include:
- Administration—FJSW has been administered by a community entity, under a
"court-annexed"arrangement. There is a question as to whether services such as FJSW should be placed within courts, government structures (e.g. Legal Aid) or remain in the community. The consultants have doubts about the effective transferability of the community administration aspect of the FJSW approach.
"coercive"service delivery—FJSW has utilized a directive approach in its service delivery, through the nature of its eligibility /referrals. This represents an approach to offering services to the public in which people are generally directed to non-legal services before they can access court. Whether or not this is to be the approach taken on a provincial level may in large measure influence the nature of access to and the delivery of services. There is a need to contemplate legislation and rules of court, which effectively capture these issues. (Note: New rules of court, enacted in April 2003, support the approach taken under FJSW).
- Range of alternative dispute resolution services—the project has used a flexible range of ADR techniques to date, and has restricted services to custody and access and support. This is significantly distinct from the approaches taken at Unified Family Court and at FJSC to date. There is expressed interest outside of the project staff in expanding their role to include matrimonial property, at least in terms of matrimonial homes on an interim agreement basis. The province will need to reflect upon the breadth of services to be provided.
- Mediator qualifications—this project has defined the mediator role as being restricted to a lawyer. This is not in keeping with the standards as set out by Family Mediation Canada, nor reflective of the history of development of these services in this province or in the country as a whole. Most family law mediators in this country are not lawyers. There is a need to reflect upon the desired role for dispute resolution professionals and to commit to developing clearly defined standards.
- Recalculation of support—the findings of this report, while preliminary in nature, support the value of recalculation. However, this review process needs to be applied more broadly than just within the pilot region. Considerable interest exists in using a model of recalculation to deal with ongoing child support issues. FJSW has made an important contribution to this development. The recalculation program now under development in P.E.I. will build upon the FJSW pilot's experience and will likely yield new information, especially about dealing with special circumstances and the impact of moving away from formal court sanction.
4.7 Despite its success, the sustainability of FJSW is very much in question. The provincial government does not have a fixed vision of future service delivery in family law services and faces economic challenges.
FJSW is being implemented at an early stage in the province's current consideration of the family law system. While it provides a useful service template for consideration provincially, there is no clear pathway at present for this to occur and no clear signal that such a provincial system will emerge. In fairness, the provincial government has become engaged in this issue and there is some activity in the direction of exploring future service delivery. It is quite uncertain at present what the implications are for FJSW. The pilot is due to be completed in March 2003.
4.8 The issue of power imbalances and violence against women needs to be examined closely in the current model being implemented in Western Region, in terms of beliefs, policy and practice. While the survey is reassuring in its findings about the safety of the FJSW mediation process, the program needs to ensure that its staff has undergone formal training on power imbalances and violence issues in separation and divorce. The program also needs to make certain its policies and practices are in keeping with current knowledge.
Family Mediation Canada, the national association for family mediators promotes a standard for training in understanding and assessing power imbalances and family violence. This standard calls for 21 hours of training for mediators of the 180 hours required for certification.
- In 2000, the Provincial Association Against Family Violence published
"Making it Safe: Women, Restorative Justice, and alternative dispute resolution."This text emphasizes evaluation of ADR programs based upon the following questions: Is referral to the program mandatory?
- What overt and subtle pressures
"encourage"participation in the process?
- Do women have ready access to legal information?
- Does the program make it safe for women to participate?
- How and when are power imbalances identified? Addressed?
- Is the community involved in program design? Is program material communicated effectively to the community?
- Are mediators trained and are the screening tools adequate?
There is evidence that FJSW provides a safe environment for its clients, in terms of its policies and screening tools. However, it is clear that FJSW is a mandatory service, in terms of the education component, and there is some evidence in the survey that significant numbers of clients believe the service, as a whole, is mandatory. There has not been formal training provided within the project to mediators and other FJSW staff in these issues to date.
Training as prescribed by Family Mediation Canada needs to be made available to all staff at FJSW. This might be done in cooperation with Family Justice Services Central, as well as Legal Aid, the private bar, justice officials developing Family Law services and perhaps judges. This recommendation is not intended to suggest that FJSW is lax in its sensitivity or responses with respect to power imbalances and violence against women. However, as history of service development in the area of family mediation in other regions suggests, significant attention to this issue will help ensure safety for all parties. (Note: This training did occur subsequent to the writing of this report.)
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