Unified Family Court, Summative Evaluation

2. Background And Context

This section of the report presents background and context about family law in Canada and provides a detailed description of the UFC model, including its mandate and objectives, history and current status.

2.1. Federal and Provincial Jurisdiction for Family Law and Family Courts

Under the Constitution Act (1867), family law in Canada, like some other areas of law, is an area of shared jurisdiction between the federal and provincial/territorial governments. Two parallel court systems exist: the provincial/territorial superior court, presided by federally appointed judges, and the provincial/territorial (inferior) courts, presided by provincially appointed judges. The federal and provincial/territorial governments each have certain responsibilities for family law matters, including the law itself, the appointment of judges and payment of their salaries, and the structure and processes of the courts that handle family law cases. Further, each court has jurisdiction over specific aspects of family law.

The superior court has exclusive jurisdiction in the area of divorce law and includes corollary matters such as child support, access and custody. Property matters (e.g., division of the matrimonial home) are also exclusively under superior court jurisdiction. The primary federal component of Canada's family law system is the Divorce Act. Each provincial/territorial government is responsible for the constitution and administration of its superior courts, including decisions respecting court structure and associated services. However, it is the federal government that appoints and pays the judges of the superior courts.

In contrast, the provincial/territorial governments have full responsibility for their inferior courts, both in terms of structure and administration, as well as the appointment and remuneration of the provincial court judges. Provincial/territorial family law legislation covers all matters related to the separation of unmarried couples as well as child support, access and custody in cases of married separating couples where no divorce is sought.1 The provinces/territories also have jurisdiction over matters such as enforcement of child support and other obligations, adoption, child protection, change of name, and matters related to the administration of the courts. Each province/territory enacts its own family law legislation.

The traditional family court model has been one in which most family court actions take place at the provincial or territorial (inferior) court level, but full jurisdiction over family law belongs to the superior court.2 The territories exhibit use of unique measures to provide access to family law. Due to the remoteness of many communities in the territories, most family law takes place on circuit, and judges of the superior court within one territory are, by virtue of their office, ex officio judges of the superior courts of the other territories.

The division of responsibilities between the federal and provincial/territorial jurisdictions is considered by many to be a challenge for Canadian families undergoing separation and divorce.3 Problems associated with the non-unified approach include stress and confusion experienced by families as a result of the jurisdictional division of responsibilities and parallel court systems. Other challenges were court proceedings for family law matters that were considered to be too adversarial due to the fragmented approach taken to resolve issues and limited access to judges who specialize in family matters.4 In particular, the approach to issue resolution used in family cases was more aligned with the approach taken in civil law matters resulting in adversarial resolution and additional stress for Canadian families and their children. The two parallel court systems were also thought to contribute to delays in processing cases and higher legal expenses for separating and divorcing families.

2.2. The Unified Family Court Model

In 1974, the Law Reform Commission of Canada recommended the UFC model to address the shortcomings of the traditional approach used in family law. The most basic element of the UFC was the consolidation of jurisdiction over all family law proceedings, the provincial superior court5; that is, it would have jurisdiction over all claims for divorce, support, custody, access, equalization of net family property, and trust claims.6 In addition, UFCs would provide access to a specialized bench made up of a core group of federally appointed judges with considerable experience in family law. Finally, the conceptual model would enable access to a wide variety of FJS to support early intervention, non-adversarial resolution of cases, and allow for case or issue resolution outside of the court. It was anticipated that a unified model would address the stress and confusion experienced by families as a result of the jurisdictional division of responsibilities and parallel court systems. In general, UFCs were expected to enhance the resolution of family issues by addressing the fragmentation of jurisdiction, the conflicting philosophies and procedures of the courts, and the lack of auxiliary support services for families.7

Given that unification is in the superior court, implementation of the UFC model is necessarily a collaborative exercise between the federal and provincial/territorial governments. It is for each individual jurisdiction to decide whether and how to establish its Family Court, including issues relating to court locations, delivery mechanisms, and the range of services to be offered. At the same time, the federal government's support is required for the appointment of the judges to the UFC.

2.2.1. Characteristics of the Unified Family Court Model

The scope of the UFC concept is presented in Exhibit 2-2, a graphic depiction of the UFC model and the elements associated with it.

Exhibit 2-2: UFC Conceptual Model of Service Delivery

Exhibit 2-2: UFC Conceptual Model of Service Delivery

[ Description ]

Source: Justice Canada (2004). RMAF for the UFCs, p.8.

A key element of the service delivery model is the introduction of intake as the first point of access or step for Canadian families dealing with family law matters.8 Intake is designed to serve as a coordinating link between FJS and the court system. As such, the intake element of the service delivery model facilitates access to FJS and encourages coordination of the court "arm" of the model with the FJS arm.9 Through intake or other similar services, the most appropriate path to resolution is identified for each case and parties are referred to the appropriate dispute resolution mechanism and/or FJS (these are discussed in greater detail in Section 2.1.2). As illustrated above, intake or referral can lead parties to FJS or to the court. However, note that parties can move between these two parts of the system.

2.2.2. Implementation of the Unified Family Court Model

UFCs were piloted in four jurisdictions: Hamilton, Ontario (1977), Saskatoon, Saskatchewan (1978), Fredericton, New Brunswick (1979), and St. John's, Newfoundland (1979). After each of these pilot projects received favorable evaluation results, the UFCs in these jurisdictions became permanent. Since then, UFCs have been maintained or expanded within the original four provinces and have been introduced in Prince Edward Island, Manitoba and Nova Scotia.

There are currently 39 UFCs in operation in seven provinces. Table 2-2 lists the UFCs currently in operation by province.

Table 2-2: UFCs in Operation by Province10
Province/Territory # of Sites UFC Locations
Newfoundland 1 St. John'
New Brunswick 8 Moncton, Saint John, Bathurst/Tracadie, Edmundston, Fredericton, Miramichi, Woodstock, Campbellton
Nova Scotia 3 Halifax, Sydney, Port Hawkesbury
Prince Edward Island 3 Georgetown, Charlottetown, Summerside
Ontario 17 Barrie, Bracebridge, Brockville, Cobourg, Cornwall, Hamilton, Kingston, L'Orignal, Lindsay, London, Napanee, Newmarket, Oshawa/Whitby, Ottawa, Peterborough, Perth, St. Catharines
Manitoba 4 Winnipeg, Brandon, Dauphin, Portage La Prairie
Saskatchewan 3 Saskatoon, Regina, Prince Albert
Total Sites 39

While each of the locations has unified jurisdiction over family law matters, there are differences in how the model has been implemented in the various provinces. For example, in New Brunswick and Prince Edward Island, the UFC model services the entire province and hears all family law matters within those jurisdictions. In contrast, in Manitoba and Saskatchewan, the UFC has exclusive jurisdiction over family proceedings in the identified locations. Elsewhere in these provinces, the UFC and the Provincial Court have concurrent jurisdiction. UFC judges travel on circuit to outlying areas but the Provincial Court continues to hear some types of family cases in these areas between circuits. Locations also differ with respect to how the UFC model is implemented and the extent to which the service delivery model conceptualized for the UFC is adopted. For example, some locations offered comprehensive intake services where an appointment is scheduled with an intake clerk before any other activities were undertaken. In other UFCs, only information services are provided.11 The various types of FJS provided also vary, depending on a number of different factors, including community needs and resources allocated to FJS, which are discussed further in the following section.

2.2.3. UFCs in the Current Canadian Context

Today, UFCs exist within a structure of federal and provincial/territorial policy and programming activities in family law. Federal family justice priorities are set forth and supported through the programs and initiatives implemented by the Department of Justice. Each province allocates federal as well as provincial funds to programs, services and locations as decided upon by their respective departments responsible for family justice.

Over the last decade, the Department of Justice has launched several initiatives in the area of family law designed to assist and work in collaboration with the provinces/territories in creating and enhancing family law policies and services in their respective jurisdictions. Most recently (from 2003 to 2008), the Child-centred Family Justice Strategy (CCFJS) represented the fifth consecutive federal initiative implemented by the Department of Justice.12

As a result of these federal and provincial initiatives, access to out-of-court FJS is not limited to UFCs; hence, many court locations offer something more than just the traditional court processes. In the Research Design Report completed prior to the evaluation in 2007, it was noted that the court models used in Canada exist on a continuum of sorts, ranging from the most traditional model to a unified model that fully implements all the service delivery elements conceptualized for the UFC.13 In the traditional family justice model, only the two parallel court systems are available for issue resolution and cases are formally resolved in the appropriate court through a hearing or trial. At the other end of the continuum is the UFC model that fully encompasses all of the intended elements outlined earlier. However, in the current context, court locations tend to fall at various points along the continuum, depending on the dispute resolution mechanisms available, FJS offered and the degree of coordination of these with the court.

Table 3-1 provides a summary of distinguishing elements of the three types of court models considered for the evaluation. Again, it is important to note that locations included in the evaluation varied in terms of specific FJS offered.

Table 3-1: Conceptual Differences in Court Models
Court Model Available Not available
UFC Combined jurisdiction/single court
Specialized bench
Intake services
Full range of FJS14
Consolidated/coordinated administrative services
(Superior and Provincial)
Combined jurisdiction/single court
Specialized bench15
Intake services (in some locations)
Full range of FJS
Consolidated/coordinated administrative services
Traditional Non-UFC
(Superior and Provincial)
Combined jurisdiction/single court
Specialized bench
Intake services
Access to information Full range of FJS
Access to consolidated/coordinated administrative services

2.2.4. Types of Dispute Resolution and FJS

The UFC model includes a range of dispute resolution options and other supports for families experiencing separation or divorce. Examples of these mechanisms include:

: a non-binding process in which a neutral, impartial third party with no decision-making authority attempts to facilitate a settlement between disputing parties;
: an approach that is essentially mediation with a third party who is more interventionist, and may shuttle between disputants who are unwilling to meet in person;
: the use of techniques to improve the flow of information in a meeting between parties to a dispute, or in a decision-making meeting;
Settlement conferences, case conferences and pre-trial conferences:
case management processes that involve an informal dialogue between a member of the judiciary, legal counsel and/or the parties, prior to a hearing or trial. The conferences tend to focus on either settlement or hearing preparation. Objectives can include settlement of issues and/or improving efficiency of the hearing through more thorough preparation; and
any process in which a judge hears each party's evidence and arguments and renders a decision that is binding on them.

FJS may entail a greater range of options, the most basic of which are information services. One service that has recently been implemented on a large scale is the provision of family law information through Family Law Information Centres (FLICs). Literature regarding family law practices and proceedings is available online and in brochure or pamphlet form at all sites serving family law clients. In some instances, in-person information services and referrals are provided, depending on the model adopted by each court location. A key benefit from providing these services is that self-represented individuals are given information about court processes, legal topics, court programs and other court services to assist them in navigating the family justice system.

Parent information and education programs

are designed to help parents understand the needs of their children during separation or divorce and provide tools/advice. These programs may simply make information available to parents who choose to access it, or they may require that parents attend participatory sessions which may or may not be mandatory and/or may be ordered by a judge.

Maintenance enforcement programs

are in place in all provinces/territories. These are usually administered separately from the court, although in some cases the courts may be involved, especially when variations to child support are required. All provinces/territories also have in place programs that deal with inter-jurisdictional support matters.

Intake, review and/or referral services

employ trained staff to help parties understand their issues and needs and identify the most appropriate resources and paths for each case and are typically accessed early in the process.

There are many other types of services such as legal advice lawyers, supervised access programs and other programs that target specific groups. The types of services developed and implemented are specific to the province/territory and are selected to meet community needs.