Dealing With the Divorce Backlog

Attempting to promote out-of-court settlement, Ontario introduces a half-baked Mandatory Information Program for those seeking divorce.

The Ontario government has recently announced new rules that require separating and divorcing couples that file in court to attend Mandatory Information Programs (MIPs) before proceeding with their case. At first glance, this justice-reform program is welcome and needed, as it attempts to make separation and divorce less litigious, and to encourage early settlement using non-court dispute-resolution processes. However, upon closer inspection, it comes up short.

As part of the MIP, each party must attend a separate information session that provides legal information, an explanation of the court process, and non-court dispute-resolution methods. Couples with children must attend a second session that highlights the ways in which the breakdown of their relationship might impact their children, and presents options to create parenting plans. The government has contracted private service providers to run the MIP, provide voluntary (in-court and off-site) mediation, and manage Family Law Information Centres in courthouses throughout Ontario.

These reforms to the family-justice system, like those in other jurisdictions, arise from the recognition that divorce can trigger wide-ranging social and economic problems. The failure to successfully and permanently resolve the legal and non-legal issues relating to marital breakdown can lead to physical and mental health issues, substance abuse, absenteeism and unemployment, juvenile crime, and academic and social problems for children. The impact that conflict between parents can have on children is well understood. Adversarial court processes increase hostility between spouses, who often must co-parent after their divorce. Furthermore, such processes cannot address the emotional dimensions of the separation process. As such, most agree that this should be a forum of last resort.

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While establishing the MIP is a first step in the right direction, the Ontario initiative is too little, too late.

The Ontario reforms are “too little” because the provincial government hasn't committed one cent of new funding to this venture. The limited funding given to service providers will render it difficult to attract qualified mediators, intake workers, and MIP presenters, and to provide comprehensive resource packages to participants. Nor is there money to improve the provision of services and programs in communities to help families prevent and respond to conflict.

Furthermore, the MIP sessions (while providing more information about the court process and the law than most people can absorb) do not provide enough information about non-court dispute-resolution options. The emotional and financial dimensions of separation and divorce are often as, or more, important to people than the legal issues. As Australian Attorney General Robert McClelland stated last March, "Access to justice is no longer about access to a court or to a lawyer: It is about providing practical, affordable, and readily available information and options to help people prevent or resolve their disputes; it is about empowerment."