Commissioned by the Association of Family and Conciliation Courts, Ontario Chapter.This Report summarizes research about justice system responses to family disputes, makes recommendations for government action based on that empirical evidence, and identifies some as yet unanswered system design questions requiring further study. This document is provocative as it is premised on a realistic appreciation of the nature of family disputes and the limits of government action, especially in the present fiscal environment, and the fact that there are issues related to family justice that research has not adequately addressed and hence development of public policy must be undertaken in the face of uncertainty.There are interrelated challenges in addressing the problems in the family justice process, not only for governments, but also for the professionals who work in the justice system. There are issues related to laws, structures and policies that governments need to address, as well as issues of professional culture and practice that need to be addressed by legal educators, professional organizations and individual practitioners. There is, however, also a need for a realistic appreciation of what can be done to better resolve family disputes, both in terms of what any programs, policies or professionals can do to reduce the stress and suffering that is a common feature of these cases, and in terms of the resources that governments can and will commit to dealing with these issues given present fiscal realities.This Report focuses on measures that governments, in particular in Ontario, should be undertaking to improve access to family justice and the functioning of Ontario’s family justice system. The Report especially considers how empirical research informs how the government should respond to family relationship breakdown. Part 1 of the Report identifies the criteria by which the efficacy of separation-related interventions should be evaluated. It is argued that three processes are most clearly demonstrated to be effective in achieving these goals. These responses are then discussed in detail: enforced adjudication (Part 2); mediation (Part 3); and providing information to those involved in family disputes (Part 4). The Report considers each of these three responses, identifying evidence of their efficacy, alternative ways to provide them, ways to improve their delivery and their limitations. Knowing that these three things work leaves several important questions unanswered, and Part 5 identifies and discusses these challenging issues. These are questions for which, to this point, research has not adequately determined clear answers. Should services be delivered under a triage model, or through tiers? To what extent should the state seek to consolidate and simplify separation-related services? In what circumstances should users be required to pay for family justice services? Should adjudicative functions and settlement-seeking/relationship-building fu
{"title":"Reforming Ontario's Family Justice System: An Evidence-Based Approach","authors":"N. Semple, N. Bala","doi":"10.2139/SSRN.2366934","DOIUrl":"https://doi.org/10.2139/SSRN.2366934","url":null,"abstract":"Commissioned by the Association of Family and Conciliation Courts, Ontario Chapter.This Report summarizes research about justice system responses to family disputes, makes recommendations for government action based on that empirical evidence, and identifies some as yet unanswered system design questions requiring further study. This document is provocative as it is premised on a realistic appreciation of the nature of family disputes and the limits of government action, especially in the present fiscal environment, and the fact that there are issues related to family justice that research has not adequately addressed and hence development of public policy must be undertaken in the face of uncertainty.There are interrelated challenges in addressing the problems in the family justice process, not only for governments, but also for the professionals who work in the justice system. There are issues related to laws, structures and policies that governments need to address, as well as issues of professional culture and practice that need to be addressed by legal educators, professional organizations and individual practitioners. There is, however, also a need for a realistic appreciation of what can be done to better resolve family disputes, both in terms of what any programs, policies or professionals can do to reduce the stress and suffering that is a common feature of these cases, and in terms of the resources that governments can and will commit to dealing with these issues given present fiscal realities.This Report focuses on measures that governments, in particular in Ontario, should be undertaking to improve access to family justice and the functioning of Ontario’s family justice system. The Report especially considers how empirical research informs how the government should respond to family relationship breakdown. Part 1 of the Report identifies the criteria by which the efficacy of separation-related interventions should be evaluated. It is argued that three processes are most clearly demonstrated to be effective in achieving these goals. These responses are then discussed in detail: enforced adjudication (Part 2); mediation (Part 3); and providing information to those involved in family disputes (Part 4). The Report considers each of these three responses, identifying evidence of their efficacy, alternative ways to provide them, ways to improve their delivery and their limitations. Knowing that these three things work leaves several important questions unanswered, and Part 5 identifies and discusses these challenging issues. These are questions for which, to this point, research has not adequately determined clear answers. Should services be delivered under a triage model, or through tiers? To what extent should the state seek to consolidate and simplify separation-related services? In what circumstances should users be required to pay for family justice services? Should adjudicative functions and settlement-seeking/relationship-building fu","PeriodicalId":163724,"journal":{"name":"Law & Society: Private Law - Family Law eJournal","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132710110","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2013-10-01DOI: 10.4324/9780203796221.CH2_7
Carol Rogerson
In the wake of the no fault divorce revolution policy, western jurisdictions have had to face the challenge of how to best deal with the financial consequences of matrimonial breakdown. The challenges are both substantive and procedural in nature. This chapter will explore the use of ‘guidelines’ based on mathematical formulas as one methodological route to ‘fair outcomes’ in spousal support, examining the concept behind and practical development of such guidelines. The primary focus will be on Canada as their Spousal Support Advisory Guidelines are regarded as a pioneering project, at least in the common law world. The use of guidelines, or formulae, had been developed earlier in the context of child support, an obligation that has taken on increased significance. While many common law jurisdictions, including Canada, have adopted child support guidelines, Canada has gone further in extending that methodology of income-sharing guidelines to the much more contentious and complex area of spousal support. Because the Canadian spousal support guidelines were developed against the backdrop both of the new priority given to child support and a successful experience with “income-sharing” child support guidelines, this chapter will first examine the basis of the child support obligation, its relationship to spousal support, and the development of a scheme of child support guidelines in Canada.
{"title":"Child Support, Spousal Support and the Turn to Guidelines","authors":"Carol Rogerson","doi":"10.4324/9780203796221.CH2_7","DOIUrl":"https://doi.org/10.4324/9780203796221.CH2_7","url":null,"abstract":"In the wake of the no fault divorce revolution policy, western jurisdictions have had to face the challenge of how to best deal with the financial consequences of matrimonial breakdown. The challenges are both substantive and procedural in nature. This chapter will explore the use of ‘guidelines’ based on mathematical formulas as one methodological route to ‘fair outcomes’ in spousal support, examining the concept behind and practical development of such guidelines. The primary focus will be on Canada as their Spousal Support Advisory Guidelines are regarded as a pioneering project, at least in the common law world. The use of guidelines, or formulae, had been developed earlier in the context of child support, an obligation that has taken on increased significance. While many common law jurisdictions, including Canada, have adopted child support guidelines, Canada has gone further in extending that methodology of income-sharing guidelines to the much more contentious and complex area of spousal support. Because the Canadian spousal support guidelines were developed against the backdrop both of the new priority given to child support and a successful experience with “income-sharing” child support guidelines, this chapter will first examine the basis of the child support obligation, its relationship to spousal support, and the development of a scheme of child support guidelines in Canada.","PeriodicalId":163724,"journal":{"name":"Law & Society: Private Law - Family Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130947526","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Recent N. Ireland case law contains useful discourse on the nature of detrimental reliance within the context of familial promises, particularly in respect of whether estoppel-based remedies are capable of ‘satisfying the equities’ that may have arisen in each situation. A wide variety of factors seem to have perhaps influenced judicial opinion and prompted forward-looking and far-reaching remedial approaches. Matters such as the conjectured loss of career prospects or marriage opportunities, a conspiracy of malign, avaricious silence by long distance siblings or the controlling actions of a disgruntled patriarch, all merited lengthy discussions and fairly detailed narrative histories. Bad behaviour by family members has also, arguably, enabled the Chancery Court to attach considerable weight to the traditional, supportive duties of kinship. Where, for example, wealthier family members have failed to provide for vulnerable relatives, the Court has not hesitated to highlight this fact, often via reference to highly comprehensive personal histories that might span decades. This focus on familial obligation possibly adds a new dimension to a classic equitable maxim; the hands of prodigal claimants must not only be 'conscionably clean’, but perhaps also engaged in some useful activity aimed at preserving either the welfare of family members or the material value of the property in question. By ‘filling in the blanks’ in this way, the Courts remind us that although the remedies granted may appear to bring financial recompense (via creation of a life interest, or a fee simple absolute) they almost invariably fail to alleviate the more difficult circumstances underpinning the plaintiff’s family life. Remedies perhaps reflect a judicial desire to admonish those defendants who were engaged in bad behaviour such as dishonesty, cruelty, blatant misogyny or excessively controlling patriarchy.
{"title":"'Clean Hands' or 'Kinship Trusts?' Detrimental Reliance and Familial Promises in Northern Ireland's Chancery Division","authors":"A. Diver","doi":"10.1093/TANDT/TTR099","DOIUrl":"https://doi.org/10.1093/TANDT/TTR099","url":null,"abstract":"Recent N. Ireland case law contains useful discourse on the nature of detrimental reliance within the context of familial promises, particularly in respect of whether estoppel-based remedies are capable of ‘satisfying the equities’ that may have arisen in each situation. A wide variety of factors seem to have perhaps influenced judicial opinion and prompted forward-looking and far-reaching remedial approaches. Matters such as the conjectured loss of career prospects or marriage opportunities, a conspiracy of malign, avaricious silence by long distance siblings or the controlling actions of a disgruntled patriarch, all merited lengthy discussions and fairly detailed narrative histories. Bad behaviour by family members has also, arguably, enabled the Chancery Court to attach considerable weight to the traditional, supportive duties of kinship. Where, for example, wealthier family members have failed to provide for vulnerable relatives, the Court has not hesitated to highlight this fact, often via reference to highly comprehensive personal histories that might span decades. This focus on familial obligation possibly adds a new dimension to a classic equitable maxim; the hands of prodigal claimants must not only be 'conscionably clean’, but perhaps also engaged in some useful activity aimed at preserving either the welfare of family members or the material value of the property in question. By ‘filling in the blanks’ in this way, the Courts remind us that although the remedies granted may appear to bring financial recompense (via creation of a life interest, or a fee simple absolute) they almost invariably fail to alleviate the more difficult circumstances underpinning the plaintiff’s family life. Remedies perhaps reflect a judicial desire to admonish those defendants who were engaged in bad behaviour such as dishonesty, cruelty, blatant misogyny or excessively controlling patriarchy.","PeriodicalId":163724,"journal":{"name":"Law & Society: Private Law - Family Law eJournal","volume":"458 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125829838","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2005-11-01DOI: 10.1111/j.1468-2230.2005.00567.x
N. Harris
Two separate discourses surround the involvement of parents in their children's education in schools. One is concerned with what is often referred to as 'parent power,' based on the conferment on parents of rights to a degree of choice and participation in respect of their children's education, a feature of legislative changes to the governance of state education that started with the Education Act 1980 and which, in part, rests on consumerist and liberal rights based notions. The other focuses on the home-school partnership ideal in which parents and schools have obligations to support each other in realising children's potential. Labour and Conservative 2005 general election campaigns included proposals to 'empower' parents. But social rights such as those in education, which are important to notions of citizenship, tend to be weak. This article concludes that over the past 25 years little power has been ceded to parents, individually or collectively, and that, in the case of rights of choice at least, any further empowerment seems unrealistic. Moreover, the principal mechanism of parental involvement, particularly since 1997, has been the enforcement of parental responsibility, a form of 'technology of citizenship'. The extent to which children hold participation and choice rights is also considered.
{"title":"Empowerment and State Education: Rights of Choice and Participation","authors":"N. Harris","doi":"10.1111/j.1468-2230.2005.00567.x","DOIUrl":"https://doi.org/10.1111/j.1468-2230.2005.00567.x","url":null,"abstract":"Two separate discourses surround the involvement of parents in their children's education in schools. One is concerned with what is often referred to as 'parent power,' based on the conferment on parents of rights to a degree of choice and participation in respect of their children's education, a feature of legislative changes to the governance of state education that started with the Education Act 1980 and which, in part, rests on consumerist and liberal rights based notions. The other focuses on the home-school partnership ideal in which parents and schools have obligations to support each other in realising children's potential. Labour and Conservative 2005 general election campaigns included proposals to 'empower' parents. But social rights such as those in education, which are important to notions of citizenship, tend to be weak. This article concludes that over the past 25 years little power has been ceded to parents, individually or collectively, and that, in the case of rights of choice at least, any further empowerment seems unrealistic. Moreover, the principal mechanism of parental involvement, particularly since 1997, has been the enforcement of parental responsibility, a form of 'technology of citizenship'. The extent to which children hold participation and choice rights is also considered.","PeriodicalId":163724,"journal":{"name":"Law & Society: Private Law - Family Law eJournal","volume":"2019 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121596500","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Children are born equal. Yet as early as eighteen months, hierarchies emerge among children. These hierarchies are not random but fall into patterns by race, gender and class. They are not caused nor voluntarily chosen by children or their parents. The hierarchies grow, persist, and are made worse by systems and policies created by the state, perpetuating the position of the privileged and continuing the disadvantage of the subordinated. Children’s equal right to develop to their capacity is severely undermined by policies and structures that hamper and block the development of some by creating barriers and challenges or failing to support them.
This Article argues that hierarchies among children violate their constitutional rights, by both the infliction of harm and the failure to provide affirmative support. It documents how our policies and structures reinscribe inequality on children and proposes a constitutional obligation to the contrary. The Article takes on the challenge of articulating a general constitutional theory of children’s rights, suggesting that children’s status, circumstances, and needs are the basis for a distinctive claim of positive rights.
Among the most critical of those positive rights is the right to developmental equality: the right of every child to maximize their developmental potential. Equality of development is a universal right of every child based on the principles of equality, equity and dignity at the core of our equal protection jurisprudence. To make this claim, the Article unearths existing hierarchies and identifies the parameters of children’s equality that is constitutionally meaningful. It then grounds a proposal for children’s constitutional rights, including a positive right to developmental equality, in existing constitutional doctrine.
{"title":"Children’s Equality Rights: Every Child’s Right to Develop to their Full Capacity","authors":"N. Dowd","doi":"10.2139/ssrn.3373324","DOIUrl":"https://doi.org/10.2139/ssrn.3373324","url":null,"abstract":"Children are born equal. Yet as early as eighteen months, hierarchies emerge among children. These hierarchies are not random but fall into patterns by race, gender and class. They are not caused nor voluntarily chosen by children or their parents. The hierarchies grow, persist, and are made worse by systems and policies created by the state, perpetuating the position of the privileged and continuing the disadvantage of the subordinated. Children’s equal right to develop to their capacity is severely undermined by policies and structures that hamper and block the development of some by creating barriers and challenges or failing to support them. <br><br>This Article argues that hierarchies among children violate their constitutional rights, by both the infliction of harm and the failure to provide affirmative support. It documents how our policies and structures reinscribe inequality on children and proposes a constitutional obligation to the contrary. The Article takes on the challenge of articulating a general constitutional theory of children’s rights, suggesting that children’s status, circumstances, and needs are the basis for a distinctive claim of positive rights. <br><br>Among the most critical of those positive rights is the right to developmental equality: the right of every child to maximize their developmental potential. Equality of development is a universal right of every child based on the principles of equality, equity and dignity at the core of our equal protection jurisprudence. To make this claim, the Article unearths existing hierarchies and identifies the parameters of children’s equality that is constitutionally meaningful. It then grounds a proposal for children’s constitutional rights, including a positive right to developmental equality, in existing constitutional doctrine. <br>","PeriodicalId":163724,"journal":{"name":"Law & Society: Private Law - Family Law eJournal","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133849751","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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