The Practice of Family Law in Canada: Results from a Survey of Participants at the 2016 National Family Law Program

Lorne D. Bertrand, Ph.D.
Joanne J. Paetsch, B.A.
John-Paul E. Boyd, M.A., LL.B.
Nicholas Bala, L.S.M., J.D., LL.M.
Canadian Research Institute for Law and the Family

October 2016

The views expressed in this publication are those of the authors and do not necessarily represent the views of the Department of Justice Canada or the Government of Canada.

Executive summary

Introduction

The National Family Law Program (NFLP), a high-profile, four-day biennial conference organized by the Federation of Law Societies of Canada, is the premiere national forum for members of the family law community to come together to learn about and discuss developments and issues in family law. It has, in the past, provided a unique opportunity for the Department of Justice Canada and the Canadian Research Institute for Law and the Family to obtain data on the experience and caseloads of family law lawyers and the judiciary.

The NFLP attracts hundreds of lawyers and judges from across the country, and was most recently held in St. John’s, Newfoundland and Labrador between 11 and 14 July 2016. Recognizing that both the Department of Justice Canada and the Institute had an interest in surveying participants at the 2016 NFLP, the Federation asked the two groups to work together to maximize responses and minimize the burden on their participants.

Accordingly, the Department of Justice Canada contracted the Institute to administer and analyze a survey on current issues in the practice of family law in Canada.

Methodology

Two electronic surveys were developed using FluidSurveys, a Canadian-based online survey service—one for lawyers and one for judges. The purpose of the surveys was to obtain current information on the characteristics of cases handled by family law practitioners in Canada, and to obtain information from both lawyers and judges concerning current family law issues.

Invitations with links to the surveys were distributed to conference registrants on 7 June 2016, followed by a reminder on 20 June 2016. During the conference, representatives from the Department of Justice and the Institute jointly presented preliminary data from the surveys to conference attendees. Another reminder to complete the surveys was distributed by email on 14 July 2016, and the surveys remained open until 3 August 2016.

A total of 458 delegates registered for the conference in St. John’s. Surveys were received from 217 participants, resulting in a response rate of 47.4%. This report examines the results of the lawyers’ and judges’ versions of the NFLP 2016 Survey on the Practice of Family Law in Canada.

Highlights of survey findings

Demographic information

• Almost three-quarters of lawyers responding to the survey were female (72.5%); 27.5% of lawyer respondents were male.
• Respondents were most likely to report that they work in Ontario (20.7%), followed by British Columbia (18.4%) and Alberta (18.0%).
• The majority (70.0%) of respondents were lawyers in private practice, while 18.0% were judges, and 11.6% were lawyers in government, an agency, or a legal aid clinic.
• Lawyers indicated that they had been practicing their profession for an average of 19.9 years; one-half of lawyer respondents (50.4%) had been practicing for 20 years or longer.
• On average, lawyers said that 84.2% of their practice involves family law matters.

Case characteristics

• Lawyers reported that another party self-represented for most or all of the life of the file in 20.4% of their cases in the past year.
• Lawyers indicated that in 32.9% of their family law cases there is an interim order that is, in effect, the final judicial disposition.
• When lawyers were asked which issues in a variation case are most likely to require a trial and judicial decision to resolve, the most common issues were parental relocation (61.2%), spousal support (46.1%), time with the child (39.9%), children’s primary residence (36.5%), and arrears of child support (35.4%).

Services

• The services that lawyers were most likely to report that they refer clients to often or almost always are mediation (70.2%), maintenance enforcement programs (70.1%), parenting education programs (63.2%), individual counselling (56.7%), and marriage or relationship counselling (44.4%).
• Lawyers reported that, on average, approximately one-third of their clients (30.7%) use non-mandatory family services such as parenting education, mental health counselling, and family law information centres.
• Two-thirds of lawyers (66.9%) said that the cases with clients who have utilized one or more family justice services, in particular mediation, are somewhat more likely to settle out of court, while 8.4% said that they are much more likely to settle. One-quarter (24.1%) said that these cases are not more likely to settle out of court.

Children’s views

• Judges (35.9%) were considerably more likely than were lawyers (19.7%) to say that they often or almost always are involved in cases where efforts are made to seek children’s views.
• The manner of soliciting children’s views that was most frequently used by most lawyers was via an assessment/evaluative report prepared by a mental health professional (62.9%), followed by a legal representative for the child (46.6%), and a non-evaluative report prepared by a lawyer or mental health professional (41.0%).

Custody and access

• A significantly higher proportion of judges (48.7%) said that they almost always use terminology other than “custody” and “access” in their orders, compared to only one-quarter (25.5%) of lawyers.
• Over one-half of lawyers (56.3%) said that they often or almost always use alternate terminology in their agreements, while almost one quarter (23.1%) said that they never or rarely do so.
• Lawyers indicated that, on average, 42.0% (range = 0% to 100%) of their clients have a shared physical custody arrangement according to their order/agreement.
• Lawyers (10.8%) and judges (19.7%) indicated that, on average, a relatively small proportion of their cases include supervised access on an interim basis. A small proportion of lawyers’ (5.3%) and judges’ (9.4%) cases include supervised access as a condition of access in the final order. In both of these situations, judges were significantly more likely than lawyers to deal with supervised access cases.
• Both lawyers (6.3%) and judges (14.5%) reported that, on average, the proportion of their cases using supervised exchanges is relatively small. However, judges see this significantly more than lawyers.
• Lawyers’ and judges’ responses differed significantly in three of the circumstances under which supervised exchange is ordered: where the parents are in high conflict; where there are allegations of spousal violence; and where the child is unfamiliar with the access parent.
• All respondents were asked if the frequency of interjurisdictional/international custody matters has changed over the past five years. Judges (29.4%) were somewhat more likely to say that these cases are more frequent now than were lawyers (21.9%), but most of the respondents reported no change.
• On average, lawyers said that parental relocation is an issue in 15.2% of their cases while judges reported that relocation is an issue in 14.5% of their cases.
• The most common reason given for a proposed relocation was for an employment opportunity, which was rated as occurring often or almost always by 77.0% of lawyers and 65.7% of judges. The next most common reasons were to be with a new partner, which was rated as often or almost always occurring by 72.3% of lawyers and 65.7% of judges, and to be closer to family/friends, rated as occurring often or almost always by 73.1% of lawyers and 50.0% of judges. The least common reason was to increase distance from the other parent, which was reported as never or rarely occurring by 79.1% of lawyers and 90.6% of judges.
• The most common type of relocation seen in respondents’ cases were when the custodial parent wishes to move to a different province or territory, rated as often or almost always an issue by 60.2% of lawyers and 31.4% of judges. Cases in which the custodial parent wishes to move within the same province or territory, were rated as often or almost always an issue by 42.7% of lawyers and 71.5% of judges. The differences between lawyers and judges were significant for both of these situations.
• Lawyers and judges were asked if relocation cases were more difficult to settle, and almost all respondents (98.4%; lawyers – 98.0%; judges – 100.0%) indicated that they were.

Child support

• The issues in child support cases that were rated as most contentious by the greatest numbers of both lawyers and judges tended to be related to income and financial disclosure. These issues include: determination of income; obtaining financial disclosure; imputation of income; and determination and payment of children’s special expenses.
• The issue involved in the highest proportion of both lawyers’ (35.7%) and judges’ (28.8%) child support cases is situations of shared physical custody. On average, a relatively small proportion of lawyers’ (13.4%) and judges’ (5.2%) cases involve children the age of majority or older when the initial arrangements are being made.
• Few lawyers’ cases (4.8%) involve undue hardship applications; a significantly higher proportion of judges’ cases (15.1%) concern such applications.
• Judges (85.3%) were significantly more likely to say that income disclosure in child support cases is often or almost always an issue than were lawyers (57.6%).
• Almost three-quarters of lawyers (71.3%) said that a party fails to comply with the continuing obligation to provide income information in the years following the making of a child support order occurs often or almost always.

Spousal support

• There was significant difference between lawyers (48.8%) and judges (26.5%) regarding the cases that involve spousal support issues.
• Judges (26.5%) were significantly more likely to report that income determination or financial disclosure is almost always an issue in spousal support cases than were lawyers (9.4%).
• The substantial majority of lawyers (92.7%) said that they use the Spousal Support Advisory Guidelines (SSAG) either often or almost always when spousal support is an issue.
• A significantly higher proportion of lawyers (94.7%) said that they use the SSAG to negotiate spousal support often or almost always, compared to 62.1% of judges. Lawyers (82.1%) were also significantly more likely to say that they often or almost always use the SSAG at mediation than were judges (64.3%).
• Almost all lawyers (91.9%) said that they use the SSAG often or almost always at case conferences, settlement conferences, and judicial dispute resolution conferences. They were also very likely to report using them often or almost always at trials (91.7%), at interim motions (93.2%), and at other court proceedings (83.1%).
• Three-quarters of lawyers (75.3%) said that the SSAG have been useful in assisting with negotiation, 70.2% said that they have been helpful in encouraging settlement by negotiation, 65.7% said that they offer a starting place, and 51.7% said that they are useful for predicting results.

Family violence

• Over two-thirds of lawyers (69.0%) said that they often or almost always screen for family violence, compared to almost one-half (46.9%) of judges.
• Over one-half of lawyers (53.1%) said that they never use a standardized measure or instrument to screen for family violence, and another 25.5% said that they rarely do so.
• On average, lawyers reported that family violence is an issue in 21.7% of their cases and judges said that it is an issue in 25.3% of their cases.
• The most common responses for how the courts addressed family violence often or almost always were by making a civil order restraining harassment or regulating contact between the parents (lawyers = 54.7%; judges = 71.0%), denying custody to the abusive parent (lawyers = 38.7% judges = 50.0%), and ordering access supervision (lawyers = 36.2%; judges = 54.6%).

Support enforcement and interjurisdictional support orders

• Lawyers and judges reported that support enforcement issues occur in approximately one-quarter of their cases (lawyers = 27.5%; judges = 22.7%).
• Judges (87.1%) were significantly more likely to report that they have dealt with cases involving provincial/territorial interjurisdictional support orders legislation or Reciprocal Enforcement of Maintenance Orders forms than were lawyers (65.2%).

Unified family courts

• One-half of lawyers (50.0%) said that they have had experience with family law proceedings in a unified family court, and just over one-third of lawyers (34.1%) said that there is a unified family court in the jurisdiction. A substantial majority of lawyers (80.2%) who do not have a unified family court in their jurisdiction said that they would like to have one.
• Two-thirds of lawyers (66.7%) agreed or strongly agreed that unified family courts have judges who are more knowledgeable than other judges about family law and related legal principles. Two-thirds of lawyers (64.7%) agreed or strongly agreed that unified family courts have judges who are more knowledgeable than other judges about the psychology of separation and the effect of separation on children.
• One-half of lawyers (50.7%) agreed or strongly agreed that unified family courts have judges who are more effective at settling family cases than other judges.
• Just under one-half of lawyers (44.9%) agreed or strongly agreed that unified family courts produce outcomes that are more likely to be tailored to individual needs than non-specialized courts.

Limited-scope retainers

• Just over three-quarters of lawyers (77.5%) said that they are aware of other lawyers in their jurisdiction providing services on a limited-scope (unbundled) basis.
• Most lawyers (89.3%) said that they have provided some type of service on a limited-scope basis.
• Most lawyers reported that they provide most of the specified limited scope services rarely or never.
• The most frequent limited-scope activity for lawyers was providing advice on a separation or similar agreement: 46.1% of respondents said that they do this often or almost always.
• Over one-third of lawyers (36.0%) said that they occasionally provide advice on pretrial processes, such as making interim applications, drafting interrogatories and conducting examinations for discovery, during the litigation process, and 23.0% said that they occasionally provide advice on trial processes such as examining witnesses, making objections and introducing evidence, during the litigation process.
• The limited-scope service that lawyers reported encountering most frequently was when a self-represented party has retained a lawyer for the limited purpose of providing legal advice on a separation or similar agreement: 39.9% of lawyers said that this often or almost always occurs, and 33.6% said that this happens occasionally.