Family Justice Services Western
Final Evaluation



Rationale / Design

3.1 FJSW arose from the concern of a small number of individuals interested in addressing needs of families encountering separation and divorce. It addressed a lack of alternatives in family law in the region and in the province (other than in the St. John's UFC Region).

No formal needs assessment was undertaken with respect to implementing FJSW. A small group of interested individuals had been advocating for about two years, unsuccessfully, for a UFC in the Western Region. They saw a clear need for alternatives in dealing with family law matters and sufficient numbers of potential cases to warrant a service. When funds became available to create such a service, this group responded, with the support and assistance of the provincial Department of Justice. The Administrator of the UFC in St. John's was instrumental in this regard.

Interviews with judges, lawyers, government officials and community agencies in the Western Region confirm that prior to FJSW, parties attempting to resolve family law matters had few options other than lawyers and court. A sample of comments:

3.2 All provinces and territories in the country are developing alternatives in family justice services. The design of family justice services varies considerably across the country. The model in FJSW is distinctive in terms of personnel (lawyer-mediators, counsellors), process (automatic referral), some components (administrative recalculation) and its base in a community agency.

There is considerable activity and interest in strengthening family law, including developing family justice alternatives across the country. These alternatives, as noted in section 1.1 of this report, focus in the main on provision of information and dispute resolution services.

A review of the FPT Family Law Committee's inventory of relevant government-based services (January 2000) highlighted the following national innovations and trends:

FJSW is distinct from other family justice services programs across the country in a number of ways:

3.3 The FJSW service as designed is well received in the Western Region

Interviews with key informants confirmed that the design of FJSW is in keeping with the perceived needs in the region for family justice services. There is particular support for the use of mediation, combined with information sessions and counselling. Almost all of those interviewed noted that this combination allows for all the issues faced by parties in separation and divorce to be addressed positively and in a non-adversarial atmosphere.

Some of those interviewed questioned the practice of restricting services at FJSW to those who had filed a court application. This included two lawyers who felt that individuals and families could benefit from the services prior to filing an application. The rationale of the FJSW Steering Committee in establishing this restriction was that it was important to control the parameters of the services while the project was in a pilot phase. Eligibility issues will be revisited in future.


3.4 Referrals to the program are restricted to the Provincial and Supreme Courts only. Information sessions are held with most new clients of the FJSW service and are well-received. Intake sessions with clients are held with the mediator. Clients view these services positively.

Entry into FJSW services occurs only following a formal application being filed in either the Provincial Court or Supreme Court. As a matter of course, family law applications filed are forwarded by the courts to FJSW. Some informants, including some staff, questioned this practice, as FJSW cannot be accessed directly by the community. However, proponents indicate the limits imposed were intended to provide some boundaries to the program in its pilot phase, and not to preclude community initiative in seeking service or to make FJSW solely reliant in the longer term on the court for referrals. To date, equal numbers of referrals have been received from each level of court to the program.

Client response to the information sessions has been quite positive, as demonstrated in a review of the self-administered evaluations completed at each session's end (compiled but not summarized), as well as the findings from the client survey conducted for this evaluation. In the survey, most participants were satisfied with the staff presenting (96%; n=82), the approach taken (94%; n=81) and the outcome (82%; n=70). The sessions were generally described as informative, supportive and useful. It is clear from the survey comments that many parents benefited greatly from information about the separation experience as it relates to themselves and to their children. Further, these sessions introduced staff to their prospective clients. It is interesting to note that while fully one-third of the survey sample reported that they were mandatory participants in FJSW, this did not appear to adversely impact their satisfaction levels or their willingness to recommend the services of FJSW to others (90%; n=77). Nearly all of these mandatory clients (98.8%; n=85) attended the sessions. Only one informant, a private lawyer, questioned the practice of "mandatory" or coerced information sessions, suggesting this may not be appropriate and that some vulnerable clients may not be in a position to effectively process such information. Staff indicated that they do accommodate individual sessions with vulnerable clients. One informant also advocated for an information session for children to be introduced.

A small number of participants have expressed that the session is not relevant for them, particularly those who have been apart for several years and are merely filing an application for variation, or those who have no historical or anticipated relationship with a child for whom they are paying support. This issue may help explain why the satisfaction rating for the timeliness of service is lower (78%) than for other features. The position by FJSW is that the session provides useful and practical information of concern for all parents and that this warrants the strong approach taken to ensure attendance. Also, while parents are told that their presence is expected, there are exceptions made. Low-functioning parents are sometimes given similar information via individual sessions.

Most interviewees were very positive about the information sessions and their impact on clients. Staff stated "information is power" and that the sessions explain the process of separation from a legal and personal perspective, which assists many clients in approaching the issues in a healthy manner. Judges and lawyers suggested that clients who attend are better informed and less likely to bring emotional issues to bear on the legal matters.

Initial mediation intake sessions take place in person or over the phone, and are usually completed within two weeks of the referral being sent to FJSW. The majority of clients surveyed view the process as being timely (68%; n=32), performed by a qualified staff person (85%; n=41), fair and safe (83%; n=40) and as having a positive outcome (75%; n=36). The lawyer / mediator indicated that there are some benefits to in-person contact, particularly in custody and access situations, especially with respect to screening for power imbalances and violence. This is described as much more difficult to do over the phone, as non-verbal cues are absent.

About one-third of all clients referred to FJSW receive either no mediation service or intake services only. This may be due to a number of issues, including:

3.5 FJSW provides a range of alternative dispute resolution approaches and techniques under the general title of mediation, geared to the needs and circumstances of families dealing with custody and access issues. Informants, including clients, generally are quite positive about the skills and approach of the lawyer / mediator and the impact of the service on families and the family law system.

There is considerable information to support the view that mediation services are having a positive impact on both families and the family law system. As of the end of June 2002, the program had successfully resolved about 70% of cases where mediation had been attempted, according to both statistics and the impressions of the mediator. The findings from the client survey also support this general impression. Seventy percent (70%) of clients reported partial or full agreement on the issues mediated. Lawyers at Legal Aid, as well as those in private practice, reported a decrease in demand upon their services, which they directly attributed to the mediation services of FJSW. Judges and court officials indicated there had been a discernible decline in the amount of court time required to resolve family law disputes and increases in consent orders. They also observed that clients are better prepared when cases proceed to court. This is most notable in cases where clients are unrepresented. Those interviewed suggested that in these cases, clients appear in court better informed about the process and better able personally to resolve the issues.

The mediator is credited with having a flexible, practical approach that obtains proven results, consistent with program goals. Clearly lawyers and judges feel comfortable with her in that role and respect her judgment and actions. In terms of agreements reached between clients, to date none have been altered by the judges interviewed.

Most clients surveyed who participated in mediation were satisfied with the timeliness of service (73%; n=39), the qualifications of the mediator (88%; n=46), the fairness and safety of approach (85%; n=45) and the outcome / resolution (72%; n=38). These clients were more likely than other users of FJSW services to indicate that they were helped in their personal dealings with separation and divorce, that the process reduced their costs and that the service compared favourably with other past resolution experiences.

Issues relating to the effective handling of power imbalances and violence issues in mediation were raised with interviewees. The program has questions within its intake form dealing specifically with power imbalances and violence. The mediator indicated that these questions are generally followed, but there is some discretion used in the context of the conversation with clients. To date, two clients have been screened out of mediation services for issues related to violence; a number which interviewees from community agencies suggest is lower than one might anticipate. Staff explained that the relatively low number of screened out cases may be explained in part by the fact that, in terms of support issues, referrals coming from HRE that involve custodial parents on income support, are not dealt with directly by FJSW. A local women's organization indicated that this is the group of women they hear from most frequently and that they have heard little feedback about FJSW. This person also indicated that they would be likely to hear if in fact the program was serving victims of violence in mediation and not applying appropriate screening tools. Two interviewees from community agencies raised the need for clear protocols and perhaps some focused staff training on this issue. The program staff did meet with women's organizations at the outset of the pilot to discuss issues of safety and how to ensure a women-friendly environment. The client survey suggests that six clients, or 11%, were dissatisfied with the fairness and safety of the process, but qualitative data suggest only one woman, whose partner was described by her as an alcoholic, felt her safety was in some jeopardy. In this case, the dissatisfaction was primarily related to perceived unfairness in the process (i.e. favouritism) rather than an unsafe environment.

There was some caution expressed by lawyers about the mediation process generally. They emphasized independent legal advice should not be bypassed in mediation and advised that parties be strongly encouraged to seek some legal advice prior to engaging in mediation. Staff noted that this is their practice.

Some interviewees (notably legal aid lawyers and some judges) advocated for an expansion of the mediation role to include matrimonial property issues. This comprehensive mediation approach is seen by some to be particularly viable given the fact that the mediator is a lawyer. Some have suggested that there may be a role for the program in mediating the issue of exclusive possession of the matrimonial home on an interim basis, as this impacts on support in many situations. (At present, the options for families are limited to more formal legal means.) However, others feel it is premature to expand the mediation role in this manner, and that this might jeopardize the positive relationship being established between FJSW and the private bar. Some informants believe the bar would be most likely to resist an expansion of the mediator's role. It should be noted that questions regarding expanded areas of practice were not put to interviewees and the comments above were unsolicited. For its part, program staff has not put comprehensive mediation forward as an area of desired expansion.

3.6 Counselling Services are an integral component of the FJSW approach and the service is highly regarded by most informants, including clients.

Counselling clients surveyed were very positive about the services they received from the counsellor. Like other survey participants, they also rated the general service highly, with some interesting differences, as follows:

Those interviewed for this report clearly supported the counselling role as a primary requirement for FJSW. The need to have accessible, responsive counselling services available to families experiencing separation and divorce was emphasized repeatedly. One private lawyer practicing in Corner Brook stated that when she refers clients to mediation services she also refers them to counselling. As to utilizing other community options, the director for community mental health services in the region estimated there is a three to six month waiting period for counselling services. Furthermore those providers available (only two in the Corner Brook area), while professionally trained, do not have specialized training in issues of separation and divorce. She also noted that, prior to FJSW, there was a "huge gap" in available services, especially for those without an ability to pay for private counselling.

For staff, there is a strong belief that the counselling services augment the dispute resolution process and impact positively on client outcomes, in terms of general parenting, in-house programs, such as mediation, and court appearances. Many informants felt the counselling service needed to be expanded so that all clients who require counselling, especially children, have access to this vital support.

3.7 Most informants are positive about the services provided by the SASW and of the skills and experience of the incumbent. Survey participants were not asked about this service, as it had been recently evaluated.

Client response to the SASW role is less clear than for other program areas. In preparing for the survey, the consultants felt there was less need to gather data on the SASW role, as this program had been recently been evaluated. As a result, they requested that these cases be under-represented in the survey sample. Given that the majority of those receiving mediation reported they did so in person, it is likely that few of those who were interviewed received assistance on support issues alone. Most of those clients were served by phone. In any event, to the degree to which the survey participants do represent SASW clients, the response to the service, in terms of timeliness, qualifications of staff and outcomes, can be seen to be positive.

3.8 Administrative recalculation is supported as an innovative, efficient and responsive option to addressing changes in payor circumstances in child support matters. Client satisfaction with the process and outcome of recalculation is bodes well for its future use.

The client survey demonstrates a positive regard for administrative recalculation. Specific findings include:

The survey results, while encouraging, must be viewed with some scepticism. The sample, although close to 30% of those who have undergone recalculation, was relatively small at n=72. It was also predominantly female, with more recipients of support than payors. For a more detailed description of the survey and its findings, see the survey report in the appendices.

The interviewees in the study who were aware of recalculation expressed support for the concept. In general, the lawyers interviewed were not familiar with recalculation, which might underline a need for education. The rationale for streaming these situations out of court was generally acknowledged as positive, as long as the opportunity for cases involving special needs or undue hardship to be addressed differently is maintained.

Some specific comments from key interviewees about recalculation include:

Judge, Provincial Court

Judge, Supreme Court

The consultants interviewed a lawyer with the Government of Prince Edward Island who is responsible for developing a recalculation model for that province and has studied the FJSW approach. The P.E.I. program will be based significantly on the FJSW experience, although it is not yet operational. Her comments on the direction being pursued include:

The interaction of administrative recalculation with support enforcement is important. The Director of Support Enforcement for Newfoundland and Labrador expressed general support for recalculation, but noted the following:

Organizational Structure

3.9 The Steering Committee of FJSW provides strong leadership to the program. The use of a community-based organization to operate this service represents a unique approach to delivering family justice services. Its applicability in other regions is questioned. One informant described the model as "court-annexed" in nature.

There is some discussion about the extent to which FJSW operates as a community organization. As noted previously, it accepts referrals only through the courts in the area. It accepts mandatory or "coerced" referrals for its services. It is strongly associated with the judges involved. One senior justice official noted that FJSW operates as a "court-annexed" service. The optimal nature and extent of the relationship between FJSW and the courts is an important question to be resolved. Staff indicated a discomfort with the fact that there are no supporting legislation or rules of court to direct their delivery, describing a corresponding feeling of vulnerability as a result. (Note: Rules of court have been enacted in April 2003 clarifying the role of FJSW and automatic referral from the courts).

Interviewees were asked about the degree to which the FJSW approach could be utilized in other regions. Most informants are highly supportive of the efforts of the Community Mental Health Initiative (CMHI) to nurture the development of FJSW in its pilot phase, but general support for community-based models delivering family justice services is less evident. Informants expressed concerns about capacity, accountability and quality expressed in the event a community-based approach is implemented at the present time in the province. It needs to be stated that none of these issues were raised about FJSW itself. In fact, some felt that FJSW's success might lead decision makers to conclude, in error, that the community capacity and preparedness to assume responsibility for such services is generally available in all regions. Several informants questioned whether or not the FJSW experience could be effectively replicated in other regions, or if it is a unique situation, which will not be easily transferred to other regions. For their part, staff members disagree with this perspective, suggesting that the success of FJSW is strong evidence of the positive value of a community-based approach.

3.10 The staffing model of FJSW includes a lawyer / mediator, a counsellor, a Support Application Social Worker and an administrative recalculation clerk. This group works effectively within a non-hierarchical structure.

The staff of FJSW does not have a traditional management structure and functions as a team. The roles of the employees are fairly distinct and they operate autonomously. The administrative coordinator of CMHI is the organizational link between staff and the steering committee and handles administrative matters

Several informants noted the positive working relationship among the staff, including the staff members themselves. They tend to work independently and collaborate as needed. Most informants seem to attribute the collaborative spirit evident at FJSW to the people involved, rather than to the organizational structure. For their part, staff members assert the working relationships are a basic and necessary feature of approach in FJSW, and are present by design not accident.

The informants generally support the staffing model. Most felt that a multi-disciplinary approach, with lawyers, social workers and psychologists, supported by an administrative person, is important to the program's success. Alternatives discussed by some informants include:


3.11 The project appears to be utilized to its capacity in the Western Region. Staffing is described as adequate in relation to current service demand, but there is no apparent excess capacity.

The program statistics described earlier in this report suggest that there is a regular and sustained workload for the existing staff of FJSW. Workload measurement is a sophisticated endeavour and no formal process was undertaken in this instance. However, relevant information has been captured, and some key workload indicators include:

Should the project continue, factors which need to be monitored in terms of their impact on workload for staff, include:

3.12 Surveyed clients of FJSW are generally satisfied with the services they have received and the associated outcomes, reporting significant benefits to themselves and their families.

As noted in previous sections, a majority of clients surveyed expressed satisfaction with the intake, information sessions, mediation and counselling aspects of the service. Key findings are noted below.

Overall Satisfaction

Clients are largely satisfied with services overall. Specific findings include:

The findings are generally positive in terms of impacts of services on surveyed clients. Key findings include:

One interesting finding appeared in response to the request that clients rate their ability to resolve issues with their spouse at the time of separation and at present. At the time of separation, 79% (n=66) of clients reported a very poor or poor ability to resolve issues with their ex-spouse, while 13% (n=11) reported a good or very good ability to do so. At the time of the survey, 38% (n=33) of clients rated their ability to resolve issues with their ex-spouse as poor or very poor, and 36% (n=31) rated this ability as good or very good, a marked improvement.

Participants were also asked to suggest areas for improvement in the service. Key suggestions include:

Full survey findings are reported in the appendices.

3.13 There are anecdotal reports of significant savings in court time for family law matters directly attributable to FJSW. Clients appear to be better educated and focused on the legal issues when they appear in court. Legal Aid reports workload reductions as a result of FJSW.

There are encouraging signs of the desired impacts of FJSW on court time and on workload for Legal Aid attorneys. Although no statistics are kept to track time in court for family law, Supreme Court officials indicate a reduction in court time of between 30 to 40%, as well as in the amount of time cases take to get to court. They attribute these changes directly to FJSW. Officials also report that lawyers are happy about the process and express disappointment in situations where cases do not fall into the geographical area served by the program. One judge in Provincial Court estimated that as a result of FJSW, court time spent dealing with custody and access issues may be reduced by as much as 75%, with a reduction of about 50% in support matters. This is enabling the court to hear more cases without having a significant backlog. All judges involved reported that participants were generally better educated and more focused when appearing in court, thus saving court time. Administrative court staff indicated some increased and new activity for them as a result of FJSW (forwarding applications, receiving and processing consent orders, consultation with FJSW staff).

Legal Aid attorneys positively note a discernible reduction in their workload with respect to family law matters as a result of FJSW. They indicate their role is more appropriately confined to legal issues and to reviewing agreements negotiated by the parties with a mediator's assistance.

3.14 A majority of persons using the mediation services of FJSW are resolving their issues of child custody and support. The integration of services, especially information sessions and counselling, is seen to impact positively on these outcomes.

As noted earlier, the success rate in finding agreement for those issues where mediation services are initiated is about 70%. This is an impressive outcome, especially when one considers the possibility for resistance inherent in the automatic referral procedure from the courts. If the traditional views about the enhanced durability of agreements made in mediation are accurate, there should also be future reductions in variation requests.

Several informants link the positive outcomes to the full array of services being offered by FJSW. There is a consensus opinion among informants that information and counselling are not peripheral supports, but vital, core services.

3.15 The majority of clients using FJSW are unrepresented by lawyers. Several informants noted the importance of having a service that provides general legal information and promotes obtaining independent legal advice and guidance, particularly as it relates to issues of custody and access.

The program statistics suggest that in about 60% of all cases using FJSW clients are unrepresented by lawyers. This statistic is supported by the anecdotal information obtained from lawyers, judges and court officials. In fact it may be under-reported. In the client survey, 90% of respondents reported no legal representation.

Judges and other informants spoke of their concerns regarding unrepresented clients. These include:

The sense is that FJSW serves to provide legal information to unrepresented clients, as well as intervention services, and as a result, clients are better informed when they do appear in court.

3.16 The budget for the service provides minimally for the staffing requirements. Administrative supports are obtained through funding for the recalculation clerk. The withdrawal of this support would hinder efficiency considerably.

Several interviewees noted that existing resources are minimal. While the basic staff salaries are covered (not all to market levels), there is a decided lack of funding for professional development. As the services provided by FJSW are sophisticated in nature, and require specific training, this is seen as an area of needed improvement. An additional investment, to shore up salaries and to ensure adequate training, is indicated.