The Child-centred Family Justice Strategy:
Survey on the Practice of Family Law in Canada 2004-2006
A total of 164 surveys were completed and returned to CRILF, representing a response rate of 42 percent. This is higher than the response rate from 2004 of 34 percent. In 2006, 90 percent of the surveys were completed by lawyers (79 percent private practice, 9 percent government/ agency, and 2 percent legal aid clinic), 7 percent were completed by judges, and 1 percent was completed by others (i.e., law professor, court administrator). The lawyers were asked how long they have been practicing family law, and the responses ranged from 1 to 39 years, with an average of 16 years. The vast majority of the lawyer respondents also practice predominantly family law. When asked what proportion of their practice involves family law cases, the average response was 82 percent, with a range of 25 percent to 100 percent.
The largest proportion of respondents were from Alberta (23 percent), Ontario (20 percent), British Columbia (16 percent), and Nova Scotia (15 percent) (see Figure 2.1). Almost two-thirds of the respondents (excluding judges) (65 percent) who answered this question (n=148) have a client base that is mostly large urban (>100,000 population), one-fifth (20 percent) have a client base that is mostly small urban (10,000 — 100,000 population), 9 percent have a client base that is mostly rural (<10,000 population), and 7 percent of the respondents reported a fairly equal mix of urban and rural clients.
Almost one-third (29 percent) of the lawyers said they are registered with a lawyer referral service. These lawyers reported that the proportion of their cases that come from the service range from 0 to 60 percent, with an average response of 6 percent. Lawyers were also asked if they conduct mediation sessions, and over one-third (36 percent) said they did.
All respondents were asked about any continuing education or training that they have taken on family law issues in the past five years. The group was very supportive of continuing education, and most had participated in several programs. The most common subjects of the programs attended were: spousal support (84 percent); custody/access (76 percent); child support guidelines (75 percent); and property division (73 percent) (see Appendix C, Table C1). These percentages are quite similar to those reported in 2004 with the exception that attendance at programs on spousal support increased from 72 percent in 2004. This change probably reflects the introduction of the Spousal Support Advisory Guidelines in the intervening period between the two surveys.
One of the purposes of this project was to obtain current information on the characteristics of cases handled by family law lawyers in Canada. In the 2006 survey, respondents (excluding judges) reported that they handled an average of 78 family law cases in the past year, ranging from 0 to 300 (see Appendix C, Table C2). This was somewhat lower than the average number of cases respondents had handled in the 2004 survey (93). When asked what proportion of these cases involved children, responses in the 2006 survey ranged from 5 percent to 100 percent, with an average of 75 percent. Over one-quarter (26 percent) of respondents' family law cases with children involved were variations of previous orders/agreements.
Lawyers were asked in what proportion of the family law cases that they have handled in the past year was either party funded by legal aid. While the average in the 2006 survey was 18 percent, there was a wide range of responses. Almost one-half (46 percent) of the 130 respondents said that none of their family law cases involved legal aid funding and 8 percent of respondents reported that they dealt exclusively with legal aid clients. The average number of legal aid cases dealt with by respondents was down slightly from the 2004 survey (25 percent).
Over three-quarters of respondents to the 2006 survey (76 percent) classified the majority of their clients as comprising approximately equal proportions of custodial and non-custodial parents. Much smaller proportions reported that their clients were primarily custodial (or primary care) parents (19 percent) or primarily non-custodial parents (5 percent). This pattern was very similar to that obtained in the 2004 survey.
Respondents were asked in what proportion of their cases in the past year was the final resolution accomplished in different ways. The most common response in both the 2006 and 2004 survey was
"settled by negotiation before trial"; respondents reported an average of 43 percent (2006) and 48 percent (2004) of their cases were resolved in this manner (see Appendix C, Table C3). One-fifth of respondents' cases in the 2006 survey (an average of 21 percent) were resolved by settlement conference. Smaller proportions were settled by parents (17 percent in 2006), decided by a judge after a hearing or trial (13 percent in 2006), settled by mediation (13 percent in 2006), or resolved by collaborative family law (9 percent in 2006). These proportions were quite similar to those obtained in the 2004 survey; the largest change was in the proportion of cases settled by parents, which increased from 13 percent in
Respondents to the 2006 survey were asked how frequently they encourage their clients to seek resolution outside of court. Three-quarters of respondents (75 percent) indicated that they almost always do this and 16 percent stated that they often do so. Only 1 percent of respondents reported that they rarely encourage their clients to seek resolution outside of court. Respondents were also asked in what percent of their family law cases is there an interim order that is, in effect, the final judicial disposition, because the case is thereafter resolved without a trial. Responses in the 2006 survey ranged from 0 to 100 percent, with an average response of 54 percent (n=136). This pattern is quite similar to that obtained in the 2004 survey.
Respondents were asked which issues are most likely to require a trial and judicial decision to be resolved in both divorce and variation cases, and the results are presented in Appendix C, Table C4). Respondents were given a variety of issues, and were asked to select all that apply. According to the 2006 survey, in divorce cases, the most common responses were spousal support, custody, and property division (see Figure 2.2). Child support was reported least as being an issue most likely to require a trial and judicial decision to be resolved in a divorce case. While the overall pattern of responses was similar to that observed in the 2004 survey, it is notable that spousal support, property division, and child support were less likely to be selected as issues most likely to require a trial and judicial decision in 2006 than in 2004, while spousal support arrears was more likely to be selected in 2006.
As shown in Figure 2.3, in variation cases, the issue most likely to require a judicial decision in the 2006 survey was parental relocation (mobility), followed by spousal support. The issues least likely to require a judicial decision in variation cases in respondents' experience were child support and undue hardship. Once again, the overall pattern was quite similar in the 2006 and 2004 surveys; however, the proportion of respondents selecting spousal support and child support arrears showed the largest decrease from 2004 to 2006, while the proportion selecting custody increased the most.
The survey asked respondents how they keep informed about family justice services (i.e., services available to clients to assist them in family law matters, e.g., counselling, education, mediation, etc.). As shown in Figure 2.4, the most common source of information in 2006 was colleagues. According to the 2006 survey, other helpful sources of information were: provincial/territorial continuing legal education courses; national or international conferences; local professional seminars; professional associations and meetings; and professional publications (reporting services, journals, etc.). Sources of information that were mentioned by fewer respondents included newsletters and the Internet. This pattern was very similar to that obtained in the 2004 survey. When asked which of these sources is most helpful to them in keeping informed about family justice services, 22 percent of the 119 respondents said colleagues, 21 percent said provincial/territorial continuing legal education courses, 21 percent said professional associations and meetings, and 19 percent said local professional seminars.
Respondents (excluding judges) were asked, in general, how well informed their clients are about a number of family justice services/issues at the outset of their case. The results are presented in Appendix C, Table C5. Overall, in both the 2006 and 2004 surveys, lawyers reported that their clients are either somewhat informed or not at all informed about family justice services/issues at the outset of their case. According to the 2006 survey, clients are most likely to be informed about individual counselling; 85 percent of respondents reported that their clients are either very well informed or somewhat informed about this service. Clients are also very well or somewhat informed about child support issues (83 percent) and marriage or relationship counselling (82 percent). Over one-half of the 2006 respondents also reported that their clients were very well or somewhat informed about the following services/issues: maintenance enforcement programs (63 percent); mediation services (60 percent); Legal Aid services/duty counsel (58 percent); and domestic violence services (53 percent).
According to the 2006 survey respondents, clients are least likely to be informed about child assessment services; 70 percent of respondents reported that their clients are not at all informed about these services. Other services/issues that respondents report clients are not informed at all about include: parenting plans (63 percent); supervised exchange services (60 percent); Family Law Information Centres (60 percent); collaborative family law (60 percent) and variation or recalculation services (57 percent).
The areas in which respondents indicated that a greater proportion of their clients were informed about in 2006 than in 2004 included collaborative family law and mediation services. The areas in which respondents rated their clients as less informed in 2006 than 2004 included spousal support issues and variation or recalculation services.
Survey respondents (excluding judges) were then asked where their clients get their information about family justice services and issues. Figure 2.5 shows that almost all 2006 respondents said their clients get their information from friends and family members. Over two-thirds said the Internet was a resource, and over half said their clients get information from media stories or advertising (e.g., television, radio, newspaper). Resources that were less commonly used were: court services; another lawyer; parenting education programs; public legal education and information association; and books. This pattern of findings is very similar to those obtained in the 2004 survey.
Recognizing that the lawyers themselves are valuable sources of information for their clients, survey respondents were asked how often they inform clients about, or refer clients to, various family justice services. According to the 2006 survey, over half of the respondents will often or almost always inform their clients about, or refer their clients to, the following services: maintenance enforcement programs (77 percent); individual counselling (65 percent); mediation services (62 percent); parenting education programs (60 percent); and marriage or relationship counselling (54 percent) (see Appendix C, Table C6). The services that respondents report they are most likely to rarely inform their clients about are: supervised exchange (46 percent); variation or recalculation services (44 percent); and supervised access (36 percent). The overall pattern of results was very similar for the 2006 and 2004 surveys.
Over two-thirds of the lawyers who responded to the 2006 survey (67 percent) reported that their clients are somewhat willing to use family justice services. Almost one-quarter (23 percent) said their clients are very willing, and one-tenth (9 percent) said their clients are not willing at all to use family justice services. These proportions are virtually identical to those obtained in the 2004 survey. In the 2006 survey, lawyers were asked if their clients who are willing to use family justice services experienced any difficulties doing so and 56 percent responded that they did. The most common reason given for this difficulty was time delay (34 percent), followed by location of service (12 percent) and cost (12 percent).
For clients who are not willing to access family justice services, respondents to both the 2006 and 2004 surveys were asked what they thought was the biggest obstacle. The most common response in 2006 was lack of trust in service (30 percent), followed by time delay (29 percent), cost (13 percent), and location of service (10 percent). Twenty-seven respondents reported other reasons, the most common being lack of availability of the service in the community and lack of interest. This pattern of results was quite similar to that observed in the 2004 survey, although the overall percentages were somewhat lower in 2006.
Lawyers were asked to what extent they think their cases are more likely to be settled out of court because of the family justice services that are available. In both the 2006 and 2004 surveys, approximately one-half said somewhat more likely (46 percent in 2006; 51 percent in 2004). A smaller proportion of respondents reported that because of the availability of these services their cases are much more likely to be settled out of court (17 percent in 2006; 18 percent in 2004). Approximately one-third of the respondents (37 percent in 2006; 31 percent in 2004) did not think their cases are more likely to be settled out of court because of family justice services.
The survey asked lawyers if there are services not available in their community that they think would be helpful to them or their clients, and in the 2006 survey 60 respondents made 80 suggestions. The services that were suggested the most were: parent information/education services or programs (23 percent of respondents); mediation/affordable mediation (15 percent); supervised access/affordable supervised access (8 percent); and assessments/assessors/ assessment centres (8 percent).
Lawyers were also asked if family justice services were available to their clients in their official language of choice, and almost three-quarters in the 2006 survey (74 percent) said yes and over one-quarter (26 percent) said no. These proportions were virtually identical to those obtained in the 2004 survey.
All survey respondents were asked if there is a Unified Family Court in their province/territory. Almost half of the 2006 respondents (48 percent) said yes and 52 percent said no. The proportion of respondents indicating the availability of a Unified Family Court decreased somewhat from the 2004 proportion (57 percent), likely reflecting the greater proportion of respondents from Alberta and British Columbia in 2006, as those provinces do not have any Unified Family Courts. Respondents to both the 2006 and 2004 surveys were then asked to what extent they agreed that Unified Family Courts accomplish specific objectives. These objectives were simplifying procedures, providing easy access to various family justice services, providing timely resolution to family law matters, and producing outcomes tailored to individual needs. In general, about half of the 2004 respondents agreed or strongly agreed that Unified Family Courts accomplished these objectives, while about one-quarter disagreed or strongly disagreed (see Appendix C, Table C7). Overall, the proportion of 2006 respondents who agreed or strongly agreed that Unified Family Courts have achieved these objectives was lower, while the proportion who disagreed was approximately the same.
In terms of simplifying procedures, 48 percent of 2006 respondents (57 percent in 2004) agreed or strongly agreed that Unified Family Courts accomplish this objective, while 27 percent (23 percent in 2004) disagreed or strongly disagreed. Likewise, over half of the respondents agreed or strongly agreed that Unified Family Courts provide easy access to various family justice services (53 percent; 55 percent in 2004) and produce outcomes tailored to individual needs (45 percent; 53 percent in 2004). Over one-third of the respondents agreed or strongly agreed that Unified Family Courts provide timely resolution to family law matters (38 percent; 45 percent in 2004), while over one-third (35 percent; 35 percent in 2004) disagreed or strongly disagreed that Unified Family Courts meet this objective. The higher number of missing responses in 2006 most likely reflects the increased proportion of respondents from provinces without Unified Family Courts, most notably Alberta and British Columbia.
Respondents who do not have Unified Family Courts in their province/territory were asked if they would like to see them implemented. Of the 88 respondents to the 2006 survey who answered this question, 72 percent said yes and 28 percent said no. The proportion responding positively to this question was considerably higher in 2006 than in 2004 (59 percent). Respondents were asked to explain their answers, and 58 reasons were given in the 2006 survey. For individuals who would like to see Unified Family Courts implemented, the most common explanation was that there is too much redundancy in a two-court system and that a
"one-stop shopping" approach makes more sense (n=9). Other explanations in support of Unified Family Courts were that there was a Unified Family Court in their province/territory, but it was not jurisdiction-wide (n=5) and judges with an interest or extensive background in family law were needed (n=4). As one respondent put it,
"judges familiar with family law issues are simply best suited to family law cases."
For individuals who did not want to see Unified Family Courts implemented in their jurisdiction, the most common reasons given were: the current system works well (n=7) and Unified Family Courts were of no benefit without the services to back them up (n=2). An example of a comment made by a respondent who did not want to see them implemented in their jurisdiction was:
"In order to be effective, they have to be properly funded and include services (e.g., mediation, etc.)."
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