School closures, loss of employment, and health concerns resulting from the pandemic have placed greater stress on families – and on the family justice system. “Since the first provincial lockdown, we’ve seen an increase in the number of parents separating,” says Professor Nick Bala. “Now, we’re seeing more family violence, child abuse, and neglect. We’re trying to understand those stresses and how they’re playing out in the justice system. That’s one set of issues we’re studying.”
Bala is talking about a recently funded, interdisciplinary research project he is working on with three others: his long-time research partner, Rachel Birnbaum, a social work professor at Western; his former student, Claire Houston, Law’07, a law professor at Western; and his LLM student, Kate Deveau.
A second set of issues relate to access to justice. “The courts, legal aid offices, and family law offices were physically closed starting in March; then in July the courts slowly began to re-open, but almost all services are now provided online,” Bala explains. “For low-income people without access to lawyers, adequate cell-phone plans, good internet service, Zoom, and so on, (or people who may not be able to speak from home in private), remote services are inaccessible.”
One question to which the researchers are seeking answers, he says, is: “How are clinics trying to respond to help those who may lack access to technology as well as access to the justice system?”
On the other hand, for people with sufficient resources in certain kinds of cases, a shift to an electronic format has increased the justice system’s efficiency and effectiveness. This leads to a third set of issues being examined. Bala points out a few improvements: “By moving away from paper-based files to having electronic filing at courts, lawyers can productively be in their offices and join a Zoom meeting rather than spending hours waiting outside a courtroom for a judge. Clients don’t have to travel to see lawyers for some matters. In addition, for some cases where there may be too much conflict between the parties, being in separate places is important.”
However, he notes, for certain kinds of family hearings, in-person meetings are better to assess credibility or to foster more effective negotiations. One challenge is determining how to assess which kinds of cases should be in each category. “We’re trying to see which changes in the justice system should carry on and be expanded and in which cases we should be going back to the kind of regime that we had before.”
To fund this project, the research team has received a total of $45,000 from the Law Foundation of Ontario and the Association of Family and Conciliation Courts’ Ontario Chapter. Part of these grants help fund a fellowship to support Deveau’s LLM studies. Before choosing her thesis topic last September, she had also been paying particular attention to family law decisions made during the lockdown period and was thinking about how they could have a substantial impact on the practice area in the future. “I was struck by the sensible and poetic judicial decisions urging parties to rise above their conflict in these stressful times,” she says.
The decisions also reminded her why she was drawn to the subject area. “All those in the family law field share a common purpose: to try to assist families, particularly children, going through a separation to find a peaceful way forward,” she says. “I feel fortunate to be involved in such a topical, cutting-edge project and to also have the opportunity to work with family law researchers I have long admired.”
As part of Deveau’s data collection, she is coding all 500-plus family law decisions released during the 2020 lockdown period from March 17 to July 6. In addition to the issues that Bala noted are being studied, Deveau says, “The data will allow us to explore questions like these: How did judges triage cases when the province went into lockdown? How did the pandemic impact children, rates of self-representation, high-conflict matters, and domestic violence? How did parties, family law professionals, and judges experience this new way of practice? And, more optimistically, how can the innovations adopted during the pandemic be modified for continued use moving forward?”
One product of the research project will be the publication of an article about Ontario’s experience in a special issue of the Family Court Review, a leading international family law journal that will compare studies and outcomes in different jurisdictions. While the research team’s study focuses on Ontario, it will also be relevant to other Canadian jurisdictions and is the only submission from Canada. The researchers are reviewing and statistically analyzing case law and surveying professionals (judges, lawyers, mediators) and parents to get a sense of their understanding and experiences of the effect of the pandemic on families and on the family justice system.
“There’s a wide recognition internationally, especially in Canada and in Ontario, that changes have been needed in the family justice system,” says Bala. “It was very much paper-based. COVID-19 has pushed us in some ways from the 19th to the 21st century, and that’s a huge change that is occurring in a very difficult and short period of time. Our systems have to adjust to that.”
By Lisa Graham