Cost-Benefit Analysis of Family Service Delivery: Disease, Prevention, and Treatment

Research paper prepared for the Law Commission of Ontario.


I. INTRODUCTION, OUTLINE AND METHODOLOGY
Family relationships are both a source of profound satisfaction, and a source of profound challenges for Ontarians. All family relationships end eventually, and it is not always death which does them part. At least 40% of intimate relationships between adults are eventually terminated by the choice of one or both parties. 1 Some intimate relationships dissolve painlessly. Many others, however, create serious challenges when they end, both for the individuals involved and for Ontario as a whole. From the province's point of view, these family challenges can be analogized to a public health problem. The malady in question is not generally fatal, but it is certainly widespread. 2 This paper considers first the problem, then the prevention, and finally the treatment. In so doing, it deploys cost-benefit and economic lenses as analytical tools.
This paper has been prepared for the family law procedure project currently being conducted by the Law Commission of Ontario (LCO). The LCO's work will also draw together research on interdisciplinarity in the legal profession and the results of a broad public consultation with Ontarians. This paper will refer to the findings from these consultations, and seek to relate them to the existing scholarly literature. This paper also includes tentative reform recommendations where they seem to be justified by the research. 3 Part I of this paper defines the phrase "family challenges" and introduces costbenefit analysis, with a focus on its potential and its limitations within this field of inquiry.
Part II identifies three sources of family challenges: (i) the economic vulnerability of Canadian families, (ii) sacrifices in earning potential during family life, and (iii) conflict arising upon relationship breakdown. Part III turns to mechanisms by which the province might prevent family challenges, either by preventing relationship breakdown or by preventing the challenges which arise upon breakdown. In Part IV, the paper turns to government responses to family challenges. Section IV.A is about increasing the legal information and services, and identifying the costs and benefits of alternative dispute resolution and litigation. Section IV.B analyzes the potential of administrative, state-driven responses to family challenges. Part V offers a brief conclusion.

I. A. Subject Matter: the Families and the Challenges Under Examination Here
Sociologists, psychologists, and public policy experts have all proposed definitions of the word "family." 4 "Family law," as the subject is taught in Canadian law schools and classified in case digests, may include issues such as child protection and assisted reproduction law. This paper, however, focuses on families which involve intimate or "conjugal" relationships between adults. This includes same-sex and nonmarital relationships and relationships which do not produce children. The focus of this paper is the challenges faced by these families and their individual members after the adult cohabitation ceases. However the roots of these post-cohabitation challenges must be traced to the experience of the family members during cohabitation.
This paper encompasses neither families which never involved an intimate relationship between adults, nor families in which the intimate inter-adult relationship never dissolved. The rationale for this limitation of scope is that there is a distinct set of challenges posed by the dissolution of intimate relationships between adults. These challenges are those discussed in sections II.B and II.C -sacrifices in earning potential and interpersonal conflict arising on relationship breakdown. Other families --the family involved in a child protection proceeding, the family seeking access to artificial reproduction technologies, the single parent seeking to support an adopted child --face a distinct set of challenges. Because the time and space available do not permit a thorough treatment of this second set of challenges, they must be left for another paper.

I. B. Unit of Analysis: Individual or Family?
This paper will consider the welfare and interests of Ontarians who were members of families, while seeking to simultaneously keep in view the interests of families as units. Our family law and our dispute resolution system currently focus on the individual rights and obligations of family members. To some extent, this is an inevitable consequence of our law's aspiration to protect the interests of (i) people who no longer wish to cohabit, and (ii) individuals whose intimate relationships have been terminated by the other party. The Canadian Charter of Rights and Freedoms has arguably helped entrench the individualism of Canadian family law. 5 However, it is also possible to think creatively about protecting the interests of family units, even when those families appear to be disintegrating. At least if children are present, dispute resolution can be conceived not as the end of a family but rather as a reconfiguration of a family. 6 The law aspires to preserve a child's relationships with both parents in most cases. 7 Therefore, parents often do not or can not entirely disentangle their lives for as long as their child or children remain below the age of majority. This may require family law process to consider the emotional health of the parents, and the need to support a modified, post-cohabitation "family." 8 Doing so can make the adults into better parents, which supports the law's overriding goal in parenting litigation of upholding the best interests of the child. 9 There is some precedent in the literature for a focus on families as units. There is also an ongoing popular and scholarly debate about whether or marriage is itself "in decline." 10 The focus of interest in this debate is not so much the well-being of the individuals within families as it is the well-being of the families as units. The case for triage or differentiated case management is largely based on the idea that different families (as opposed to different individuals) are best served by different services and dispute-resolution approaches. 11 The costs and benefits of focusing on family units versus individuals awaits a fuller exploration, but the literature does provide a basis to explore this intriguing possibility. The interests of broader communities and of Ontario as a whole may be correlated with a progressive and therapeutic response to family units in crisis. This paper will, whenever possible, seek to incorporate both the individual and the family as units of analysis. Alternatively, these relationships may be sites of coercion and power. 12

Meg
Luxton, for example, suggests that women's primary responsibility for domestic labour, and particularly childcare and other caregiving responsibilities, is central to women's economic dependency on men … the nuclear family form results in women doing vast amounts of socially necessary labour for free and in ways that are not recognized or validated socially. 13 Choice is also a central issue in the debate about distinctions between cohabitation and marriage. Some scholars argue that the law should not make distinctions between couples who have cohabited for extended periods and couples who married. 14 Others reply that the choice to marry or not marry is a significant one, from which private family law consequences may legitimately follow. 15 Another line of critical inquiry focuses on the concept of "conjugality," and queries whether the law should distinguish between those whose cohabitation is "conjugal" and those whose cohabitation is not. 16 Marriage itself and its historical development have been widely explored in the sociological literature. Ernest Burgess argued in 1945 that, near the beginning of the 20 th century, a transformation had occurred in the United States from "institutional marriage" to "companionate marriage." 17 Whereas the former type of marriage was a "building block of society" and regulated by social norms, the latter was fundamentally defined by the affective bonds between the parties and by their choice of each other.
John Amato and his colleagues have suggested that this trend continued into the postwar period: As men and women gained greater freedom to engage in multiple sexual relationships before marriage, marry whomever they pleased, negotiate their own marital roles, and leave unsatisfactory unions, people came to focus increasingly on whether potential spouses would be good companions, emotionally supportive mates, and satisfying sexual partners. 18 This development appears to have elevated the importance of individual choice in the formation intimate relationships. Andrew Cherlin argued in 2004 that a second transformation had subsequently occurred, towards "individualized marriage, in which the emphasis on personal choice and self-development expanded." 19  Culture consists of an ever changing constellation of meanings and practices, that provides a means for examining the flow of family experience within context … In our everyday lived experience, culture is usually hidden from view, because it is so familiar and so deeply embedded in our habits and routines. For parents, this often means that the everyday decisions of parenting are shaped by non-specific, background undercurrents that guide what seems right, natural or appropriate. Culture is paradoxical insofar as it is pervasive in everything we do but so often it is indecipherable. It is a case of the fish not being able to see the water in which it swims. 21 To the extent that intimate relationships are the product of choices, to what extent are they economic choices? It is generally thought that decision-making in intimate relationships and between family models is driven by emotional or cultural factors, rather than economic ones. However, studies of the decision whether to marry have identified relevant economic incentives and disincentives to marriage. 22 Premarital and cohabitation contracts are entered into by at least some Canadians, and those who do so are clearly aware of the economic consequences of intimate relationships and their potential breakdown. 23

I. D. Evaluative Tool: Cost-Benefit Analysis
This paper will seek to apply cost-benefit analytical tools to family challenges and our responses to them. Cost-benefit analysis (CBA) has been defined as the Attemp[t] to place a dollar valuation on the outcomes of a program or intervention and to answer the question: How much is society willing to pay for the output of this program or what are the benefits to society of having this output? The dollar valuation of this output or the benefits are then compared with the costs of producing it. If the benefits exceed the costs, the program is considered to be an efficient use of society's resources. 24 CBA originally sought to identify "Pareto improvements," which is to say changes in policy which would make at least one person better off without making anyone worse off. 25 Following the work of Nicholas Kaldor and John Hicks, CBA came to accept that a change can be described as "efficient" even if someone is made worse off, provided that everyone would be better off if the "winners" from the change were to compensate the "losers." 26 CBA has been widely applied to the study of environmental and other regulation 27 and to proposals for new government expenditure, for example in health care. 28 However, it has also been criticized for inattentiveness to distributional questions and for its attempt to put a dollar value on human life or other things which should arguably be considered "priceless." 29 Formal cost-benefit analysis generally requires (i) a quantification of benefits and costs and (ii) an arithmetic comparison of them. Often many of the numbers in the equation are speculative, insofar as they refer to an uncertain future or contra-factual situations. 30 Even if they are real and have already been incurred, determining the true costs and benefits of public sector initiatives is very challenging. Regarding costs, the theoretical efforts of Canada's Parliamentary Budget Office and its counterparts are helpful. 31 With regard to social benefits, the work of the Commission on the

Measurement of Economic Performance and Social Progress led by economist Joseph
Stiglitz is also useful. 32 Assuming that costs and benefits can be quantified, cost-benefit analysis may be used to identify investments of public funds which will "pay for themselves" or produce benefits which exceed their costs in the long run. For example, a recent report from the Ontario Association of Food Banks argued that poverty costs $10.4 billion to $13.1 billion per year for the federal and provincial governments, or $2,299 to $2,895 per year per Ontarian household. 33 This report divides the social cost of poverty into three components. The "remedial costs" include governmental health care, crime-response, and social assistance expenditures which would not exist in the absence of poverty.
The "intergenerational costs" are created by the inherited impediments and needs of children of poor families. "Opportunity costs" are the provincial revenues which are lost because of citizens being less economically productive than they would be in the absence of poverty. 34 Cost-benefit analysis is compatible with a variety of different choices about what's important to us as a society. In the words of Cass Sunstein, CBA should not be seen as embodying a reductionist account of the good, and much less as a suggestion that everything is simply a "commodity" for human use. It is best taken as pragmatic instrument, agnostic on the deep issues and designed to assist people in making complex judgments where multiple goods are involved. 35 CBA requires, and is not an alternative to, a conversation about our values as a society.
This conversation is necessary in order to place dollar figures on the various outcomes of public policy options. As an analytical technique, CBA is compatible with a variety of alternative schemes for valuing these outcomes, such as the Genuine Progress Index (GPI). The GPI is an index of human progress which was designed as an alternative to more purely financial measures such as Gross Domestic Product or Gross National Product. 36 Formulations of the GPI often include items such as "cost of family  39 This report identified a nexus between family law disputes, social assistance, and domestic violence. Ontario Works (the provincial social assistance system) is a means-tested program. In order to be entitled, an applicant must show that he or she remains below a certain income level despite having made "reasonable efforts to obtain compensation or realize" all "financial resource [s] or income that the person may be entitled to or eligible for." 40 An applicant who is entitled to child support from a co-parent must therefore make efforts to obtain it.
If the applicant has experienced domestic violence at the hands of this co-parent, then the obligation to pursue him or her for child support may create vulnerability to further violence. The Ontario Works Policy Directives respond to this danger by providing that "individuals at risk of domestic violence are not expected to pursue support and may be granted a waiver." 41 However, the Walking on Eggshells authors reported that many individuals who would have benefitted from this waiver were unaware of it. Within their interview sample, only 2 out of 34 claimants who might have qualified for the waiver were even aware of its existence. 42 One interviewee reported: I was told absolutely, that I had to go for child support even though I told them that it was a dangerous situation, they still said I had to do it if I wanted to receive benefits from them. And then they turned right around and said they were going to take it. 43 While this specific account cannot be corroborated, it is probably representative of the experience of at least some domestic violence victims. The pressure to pursue child support faced by social assistance recipients is an example of a "cost" imposed by our family service delivery system and borne by an already vulnerable group. However, it is very difficult to imagine how this cost might be quantified.
As discussed below, there is a substantial literature evaluating experiments and pilot projects in the family dispute resolution sphere. The value of these projects is most often measured in terms of the settlement rate -how many of the litigants withdrew from litigation after engaging in the initiative under study. Settlement rates are a helpful indicator proxy for the benefits of a family process reform initiative, but a settlement might be exploitative or not durable. For this reason follow-up interviews and questionnaires with participants, asking for example how many would recommend a particular intervention, are a useful complement to settlement rates. 44 These studies provide a basis for comparing the costs of specific types of ADR to the process costs of litigation, but they do not generally consider broader costs and benefits (including non-financial ones) to adults, to children, and to communities.
Identifying these costs and benefits would be necessary in order to perform a formal A recent case report tells the story of an Ontario couple who experienced many typical family challenges. 55 The story of their relationship and its dissolution is told below. Subsequent sections of this paper will make reference to this story, in order to illustrate the nature and impact of family challenges. Despite --or perhaps because of --their many decades together and their two young children, the parties were unable to part company amicably. It may be that they had never been very happy; a judge later found an "undercurrent in the evidence of some domestic violence between the parties and a power imbalance in the relationship of the parties." 56

II. A. Economic Vulnerability of Canadian Families
The Peters are somewhat indicative of this economic vulnerability of Canadian families , although they were perhaps better off than most. Ron Peters was fortunate, to have a secure pension from the Government of Canada paying $48,306 per year. 57 Beatrice's income was not disclosed by the case report. However, the parties worked for ten years to build a business which appears to have consistently lost money and eventually gone bankrupt. At the time of the judgment, Ron owed over $50,000 to the Canada Revenue Agency and Beatrice owed $26,000 to a credit counselling agency.
After 30 years of hard work, their collective net worth was less than $300,000. 58 The end of an intimate cohabitational relationship is a time of financial stress for its members. At the very least, cohabitation's economies of scale are suddenly lost and transitional costs of establishing new domiciles must be absorbed. Subsequent sections of this document will describe in detail the financial costs of relationship breakdown and family litigation. The ability of individuals to meet these challenges depends substantially on their economic position before the break-up occurred, and there is evidence that large numbers of Canadian families are already "on the edge" financially and ill-equipped to deal with relationship breakdown. There is also evidence that the poorest Ontarians (those earning less than $20,000 per year) are 33% more likely than other Ontarians to experience family relationship problems. 59 Canadians have become steadily more indebted and less likely to have savings, and this trend has persisted through economic recessions, recoveries, and booms. This trend has reduced the ability of Canadians to draw upon reserves of cash and property in order to cushion the financial blow of relationship breakdown. 60 The following chart,

II. B. Sacrifices in Earning Potential Undertaken in Intact Families
As Simply cohabiting in an intimate relationship may lead to such sacrifices being made. In Beatrice Peters' case, for example, they occurred long before she had children. In addition to income, a household requires a certain amount of domestic labour in order to function. It may be efficient for one party to curtail education or employment in order to discharge these functions, leaving the other to concentrate on income-generation. 67 Even in the absence of efficiency gains, this arrangement may be adopted due to social pressures or gender role expectations. 68 However it is the presence of young children which makes sacrifices in individual earning potential most likely. 69 While the time required for domestic labour other than parenting may have declined with technological advances, 70 parenting remains very time consuming and is, perhaps, becoming more so. 71 Becoming a parent therefore provides a much stronger incentive to curtail employment or education than does simply cohabiting or marrying. Many parents must pay for child care in order to continue working or attending school, and a substantial number are not capable of earning The most significant economic consequence of marriage or marriage breakdown… usually arises from the birth of children. This generally requires that the wife cut back on her paid labour force participation in order to care for the children, an arrangement which jeopardizes her ability to ensure her own income security and independent economic well being. 72 Some parents leave the workforce entirely, either permanently or (more commonly) for temporarily during the infancy of their children. Others remain employed but work fewer hours, choose flexible employment, or work night shifts so as to balance family schedules. 73 The percentage of Canadians working weekends, evenings, nights, or rotating shifts increased from 23% to 29% between 1992 and 2009. 74

II. B. 2. Quantifying Parenting
What Justice L'Heureux-Dubé demonstrated in Moge remains true today: women are substantially more likely than men to make sacrifices in their earning potential due to family responsibilities. For this among other reasons, they are more likely to experience financial challenges after relationship breakdown. However, the available data does suggest a demographic trend to a more balanced distribution of wagegenerating and domestic tasks within Canadian households since Moge was decided.
A substantial body of literature exists about the gender allocation of parenting responsibilities in Canadian households. 75 Perhaps the most obvious measure of parenting contributions is quantity of time which adults spend with their minor children.
However scholars have identified other relevant contributions to parenting. Joseph Pleck suggested that paternal involvement can be measured in terms of (i) the nature and quality of interaction with children and (ii) taking responsibility for decision-making, in addition to (iii) absolute number of hours spent in parenting. 76 Duxbury and Higgins suggest that a parent who is responsible for children and makes decisions on their behalf experiences more stress than a parent who simply spends time with them. 77 This might mean that parents in the former group are more likely to make individual earningpower sacrifices in order to cope.

II. B. 3. Persistence of Gender Patterns
However parenting is defined, researchers have found that women today usually do more of it than men do. Duxbury and Higgins (2001) asked Canadian parents who had the "primary responsibility for child care" in their families. 63% of women replied that they did so, and 50% of men replied that their female partners did so. Roughly 39% stated that responsibility was shared. 78 With regard to responsibility for child care, Duxbury and Higgins found little change between 1991 and 2001. Another interesting indication comes from the National Longitudinal Survey on Children and Youth. In conducting this survey, Statistics Canada telephoned Canadian households and asked to speak to the "person who is the most knowledgeable" about the child. In 92% of the cases it was the mother of the child who came on the line. 79 The gender pattern may be most pronounced with regard to the youngest children. 80 Kerry Daly reported that, in 1998, "employed mothers in dual earner families with a child under 5 years of age spent an average of 91 minutes per day in personal childcare activities (feeding, washing and dressing children) compared to 47 minutes among fathers." 81 Citing a 2001 book about American women, Thomas Oldham recently noted that "only 34% of married women with children younger than age six work full time." 82 Canadian law allows either mothers or fathers to take "parental leave" from paid employment immediately after the birth of a child. Because this program does not replace the entire income of the parent, it constitutes a sacrifice in individual earning power undertaken in order to discharge family responsibilities. Gillian Ranson observes that mothers remain much more likely than fathers to take parental leave, and this is another example of the persistent gender role pattern. 83 In fact, fathers are less likely to have employment interruptions of any kind than childless men are. 84 Beaujot and Ravanera analyzed time-use data from the 2005 General Social Survey conducted by Statistics Canada, in order to determine how men and women are dividing paid and unpaid work within families anchored by adult heterosexual relationships. 85 Their results neatly summarize the persistence of a traditional gender pattern in Canadian families: the complementary-traditional (he does more paid work, she does more unpaid work) is the predominant model with 32.9%, followed by woman's double burden (she is doing same amount of, or more, paid work, and more unpaid work) with 26.8%. … the role-sharing model, in which they do the same amount of unpaid work, comprises 26.5%. 86 These gender patterns are reflected in another finding from the same study: Canadian women tend to have jobs with more flexibility but lower pay than those of men. 87 This is logically consistent with women's efforts to balance paid employment with domestic labour.
Most recently, Ranson's 2010 book Against the Grain provided a helpful literature review on these issues. 88 The focus of Ranson's volume is couples who have adopted equally-shared or female-breadwinner family models. While arguing that this group constitutes a "vanguard," she acknowledges that they are not representative of the majority. Ranson's conclusion is that "the bottom line, in Canada as in many other industrialized countries, is that the responsibilities of parenthood continue to be 'gendered and privatized,' with mothers continuing to face greater demands than fathers. 89

II. B. 4. Evidence of Change and Gender Role Convergence within the Family
Despite the persistence of traditional gender roles, there is also evidence of historical and ongoing change. These changes may reduce the prevalence of individual earning-potential sacrifices, or distribute them more equitably among family members.
This could ease the post-relationship financial disruption which these sacrifices cause.
The most dramatic social change has been the increase in female labour force participation over the past half-century. Between 1960 and 2000, the proportion of Canadian women in the labour force rose from 32% to 71%. 90 Canadian women still earn less than men on average --$24,400 versus $39,300 per year in 2003. 91 However, the gender wage gap shrank steadily between 1967 and 2003. 92 Over the course of this period, women's participation in registered retirement savings plans (RRSPs) and employer-sponsored pension plans also steadily increased, coming very close to gender parity on some measures. 93 Kerry Daly observes that the "dual earner family" (both parents in the work force) is now the "dominant family form in Canada" and accounts for 7 out of 10 two parent families. 94 Ranson adds that "the majority of young Canadian families in all regions, as well as in all economic, ethnic and language groups, have both parents either in the paid labour force or in education or training programs." 95 Looking forward, Beaujot and Ravanera note that the growth of the service sector and the knowledge economy may benefit female workers more than male workers. This is because women are more likely than men are to work in service industries, and also more likely to pursue post-secondary education. 96 Increased female labour force participation has certainly not "solved" the problem of post-relationship economic disruption caused by individual earning potential sacrifices. However, it has reduced markedly the number of women who have no capacity to earn income after a divorce or separation.
Significant, although less dramatic shifts have also taken place in the work and parenting behaviour of Canadian men. There has been some decline in male labour force participation since 1971, roughly the same period during which women's labour force participation was dramatically rising. 97 Referring to American data, Ellen Galinsky and her colleagues observe that "men are taking more overall responsibility for the care of their children in 2008 than in 1992, according to themselves and their wives/partners." 98 Daly confirms that in Canada too, "the dominant trend in the contributions that women and men make to parenting and domestic work is one of convergence with women doing less and men doing more." 99 The Peters' parenting arrangement in Sault Ste. Marie is representative of this trend, with Ron acting as the primary stay-at-home parent. 100 Gillian Ranson argued that the non-traditional Canadian households which she studied (like the Peters) are at the vanguard of "change evident on a global scale," and that "all this change, however slow and slight, is in the direction of more egalitarian relationships in the home." 101

II. B. 5. Post-Relationship Effects of Sacrifices
Earning potential sacrifices are and will continue to be a consequence of family life for many if not most Canadians. As noted above, this is most powerfully true for parents. The more non-paid family responsibility or labour an individual assumes, the more likely it is that he or she will curtail education or labour force participation. When and if those relationships end, what are the continuing effects of the earning-potential sacrifices which individual family members make?
The judgment of Justice L'Heureux-Dubé in Moge gives a foundational account of the connection between earning-potential sacrifices within relationships and economic problems afterwards: Once the marriage dissolves, the kinds of non monetary contributions made by the wife may result in significant market disabilities. The sacrifices she has made at home catch up with her and the balance shifts in favour of the husband who has remained in the work force and focused his attention outside the home. In effect, she is left with a diminished earning capacity and may have conferred upon her husband an embellished one.

…
The financial consequences of the end of a marriage extend beyond the simple loss of future earning power or losses directly related to the care of children. They will often encompass loss of seniority, missed promotions and lack of access to fringe benefits such as pension plans, life, disability, dental and health insurance. 102 A substantial economic literature seeks to quantify the "wage depreciation effect" -the long-term impact on an individual's earnings of temporary absences from the workforce. As noted above, leaving the workforce is the most dramatic (although not the only) type of sacrifice in earning potential which an individual can make due to family responsibilities. In her 2005 article, Kathleen Spivey reviewed and added to this literature. 103 Her study confirmed that "total non-employment time has a statistically significant depreciation effect on wages" and that a wage depreciation effect persisted from early-career interruptions even many years later. 104 With regard to gender differences, Spivey found that "wage losses associated with non-employment were less severe for women than for men, although more past interruptions seemed to matter for women than men." 105 Robert Leckey notes the continuing economic disadvantage faced by women leaving intimate relationships, which is at least partially attributable to the wage depreciation effect: recently divorced or separated mothers remain financially worse off than recently divorced or separated fathers … 44 percent of recently divorced or separated mothers have an annual personal income of less than $30,000, contrasted with 19 percent of recently divorced or separated fathers. 106 The spouse who did not make such sacrifices during the relationship has usually benefitted somewhat from the domestic focus of the spouse who did so. 107 For example, Ron Peters' ascent through the ranks of Parks Canada to become manager of Pukaskwa National Park might have been impossible had Beatrice not been willing to move with him between various postings. 108 The legal remedy of spousal support is, among other things, designed to compensate the spouse who made earning-power sacrifices using the income of the spouse who did not. 109 However, spousal support is by no means a complete solution to this problem. It is ordered and/or paid in only a small minority of divorces and separations, and in the Peters' case spousal support was not claimed. Carol Rogerson estimated in 2002 that spousal support was paid in only 10-25% of divorce cases, 110 although it is possible that the development of the Spousal Support Advisory Guidelines since that date have increased its prevalence. The Guidelines themselves propose a payor income "floor" of $20,000. If neither spouse earns more than that amount, it is very unlikely that spousal support will be paid. 111

II. C. Conflict arising from relationship break-down
Family challenges are created not only by the economic life of the intact family, but also by what happens when the intimate relationship at the heart of the family dissolves. Most relationship break-downs are characterized by some degree of conflict between the adult parties. The Peters' case had an unusually high degree of conflict, but family justice system workers will recognize as familiar many of the manifestations of hostility from that case. If the family includes children who are old enough to be aware of the break-down, then they are likely to be affected by it in some way. This section will briefly review the literature on post-relationship conflict, and the costs which it imposes upon adults, children, and society.
Although post-relationship conflict may occur without any legal manifestation, conflict arising from relationship break-down frequently results in legal disputes. A 2009 telephone survey conducted for the Ontario Civil Legal Needs (OCLN) Project asked low-and middle-class Ontarians which civil legal problems they had experienced in the previous three years. 112 "Family relationship problems" were reported by 12% of the respondents, and by 30% of all those who reported having any type of civil legal problem. Family relationship problems were, by a substantial margin, the type of civil legal problem most often experienced by low-and middle-class Ontarians. The prevalence of family problems was greater than the combined prevalence of the second-and third-most common civil problems. 113 When family conflict does manifest itself in a legal form, it very often continues as such for extended periods of time. The OCLN telephone survey found that, among the respondents who had experienced a family relationship problem at any time in the previous three years, 44% reported that the problem was still unresolved at the time of the survey. 114 Three-quarters of those in this group stated that they had been trying to resolve the family relationship problem for a year or more. 115  The scholarship at one point debated the impact of divorce itself on children, asking whether divorce is "bad" or "good" for children. The general consensus until perhaps the 1980s was that divorce was, at best, a necessary evil. While this line of inquiry continues in some quarters, 117  While children have substantial resilience to the effects of family break-down, 118 there is also little doubt among child development experts that exposure to serious interparental conflict can leave long-term scars. 119 For example, the judge who decided the Peters' case identified a serious risk that the children might be placed in the middle of much hostility between their parents who would be forced by the nature of the custodial arrangement to have more contact with each other than they have at the present time … the children are far more comfortable when their parents have less contact with each other. 120 It is at least plausible that family conflict can reduce the ability of children to be productive and contributing members of society in the long run, although this is very difficult to quantify. If so, this is a significant social and economic cost. Post-relationship conflict is inevitable, but the extent and pathology of family conflict is influenced by the response to it. 121 In evaluating potential responses to family challenges, reducing conflict -especially inter-parental conflict to which children are exposed -must be one of the goals. proposed that family conflict be identified and treated as a public health epidemic, due to its disease-like impacts upon society. 122 This means that both prevention and treatment are important. This Part will focus on the ways in which the government might prevent family challenges or reduce their severity before they occur.

III. A. Prevention of Relationship Break-Down
One way to reduce the impact of family challenges would be to reduce the number of intimate relationships which are voluntarily dissolved. This was, indeed, a central social goal for many decades in Canada. Books were written, and professionals trained, with the goal of preventing divorce. 123 Section 9 of the Divorce Act also reflects the policy objective of "saving" marriages. It provides that family lawyers must "draw to the attention" of their clients to the statutory objective of "reconciliation of spouses," and provide information about "marriage counselling or guidance facilities known to him or her that might be able to assist the spouses to achieve a reconciliation." 124 Some American scholars argue that preserving or "protecting" marriages should be an explicit goal of family law. 125 For example, "covenant marriage," a form of union which is designed to be more difficult to dissolve than normal marriage, is available to couples in some American states. 126 The focus of this scholarship has generally been on saving marriages, as opposed to intimate cohabitations generally. In fact, many of those who wish to "save marriage" from divorce also perceive non-marital cohabitation as a "threat" to marriage which society should resist.
While the law can make the legal state of marriage more difficult to exit, it is difficult to see how it can preserve family affection or harmony. Nor can people be forced to cohabit. Preserving the legal form of a marriage which lacks affection, harmony, or cohabitation has no apparent purpose. For these reasons, it seems more promising to assume that large numbers of intimate relationships will continue to dissolve before death does them part, and to examine ways to prevent or mitigate the challenges which arise when they do so.

III. B. Prevention of Challenges Arising Upon Break-down
This section will consider what society can do for members of intact families so as to reduce the severity of the challenges they will face when and if those relationships dissolve. Richard Susskind seems to be correct in suggesting that people "prefer to have a fence at the top of a cliff rather than an ambulance at the bottom." 127 It is worthwhile to consider how family challenges might be prevented.
A key question which has emerged from the LCO's public consultations pertains to the idea of "early intervention" in family disputes. 128 How early is early enough? The answer might be that early intervention must begin during cohabitations, in anticipation of the fact that many cohabitations will eventually be ended voluntarily. One interesting finding from the Ontario Civil Legal Needs Project telephone survey suggests some scope for prevention of challenges. 14% of the respondents said that in the future they would be likely to experience family relationship problems. 129 If it is true that many Ontarians anticipate future family challenges, they may be receptive to initiatives to prevent or mitigate those challenges. The government should ensure that its public information initiatives about family law are made available and accessible to Ontarians who are still cohabiting in intact relationships, not only to those who have decided to cease cohabiting.

III. B. 1. Education
The severity of the conflict which arises upon relationship break-down is to some extent dependent on the manner in which the parties communicate and address that conflict. Education as prophylaxis for dysfunctional family conflict could conceivably start before the conflict arises, if it were delivered in high school or as a pre-requisite to marriage. 130 The Ontario secondary school curriculum already includes a course entitled "Healthy Active Living Education." In this course, students are "given opportunities to refine their decision-making, conflict-resolution, and interpersonal skills, People who chose to live in a de facto union should specify how they intend to live as a couple and how they intend to manage their family relationship to avoid disputes and disagreements… because a written document provides more lasting proof than a verbal agreement, it is in your interest to sign a written cohabitation contract with your de facto spouse. 133 By contrast, the family law section of the Ontario Ministry of the Attorney General does not appear to mention cohabitation or marriage contracts. 134

III. B. 3. Discouraging Earning-Potential Sacrifices: Public Investments in Child Care
As established above, sacrifices in earning potential undertaken for family reasons can lead to economic challenges after relationship break-down. Some such sacrifices are an inevitable and healthy response on the part of Ontarians to their family responsibilities. However, Ontario might want to discourage the most dramatic form of earning potential sacrifice -extended or permanent departures from the labour force.
To put the point in positive terms, the state may wish to encourage continuing employment and/or educational activities by parents.
As noted above, parenting is the family responsibility which is most likely to lead Ontarians to make earning-potential sacrifices. Therefore, increasing the supply and affordability of non-parent child care is one way to reduce the need for those sacrifices and thereby reduce the post-separation disruption which they cause. This is particularly true for mothers. Willem Adema observes that "the development of formal childcare allows female employment to expand further, both in terms of the number of female workers and the hours they engage in paid employment." 135 As female labour force participation rates have increased, there has been a commensurate increase in the proportion of non-parental child care. 136 However, by comparison to other wealthy countries Canada has made very limited public investments in child care. The OECD found in 2006 that Canada's investment in early childhood services was equal to only 0.3% of GDP. 137 This was the lowest figure among 14 OECD countries studied in the report. 138 This report also noted that only approximately 24% of Canadian children between the ages of 0 and 6 have access to regulated day care. 139 Despite repeated electoral promises, there is still no national non-parental child care program. Indeed the most recent substantive federal initiative was the creation of the Canada Child Tax Benefit, which takes the form of a monthly cash payment to families with minor children. 140 While this initiative may facilitate the purchase of private child care, it does not increase the supply of non-parental child care and provides no incentive to parental labour force participation. It was not intended to be, and does not serve as, a deterrent to sacrifices in earning potential.
Quebec is the exception to generally low overall public investment in child care.
In this province public provision of day care is established and widespread. According to  Governments should consider restructuring benefits such as TFSA so that they incentivize income-generation by both spouses, and disincentivize earning-power sacrifices.

III. B. 4. Discouraging Earning-Potential Sacrifices: Tax Reform
Kathleen Lahey argues that the tax system is one contributor to "unrelenting pressure on women to substitute unpaid work for paid work at the margins." 144 One source of this pressure which she identifies is "joint tax instruments," defined as "tax provision[s] that adjus[t] tax liability either upward or downward on the basis of having a spouse or common-law partner." 145 For example, the dependent spouse credit reduces tax liability when a taxpayer's spouse is being supported by the taxpayer. 146 Lahey argues that that joint tax instruments are disincentives to women's labour force participation because their benefit is reduced or lost if the spouse with lower earning potential joins the labour force. Whether this spouse is male or female, the salient point is that joint tax instruments may encourage sacrifices in earning potential, and thereby exacerbate economic problems post-separation. Joint tax instruments have complex costs and benefits, but it should be recognized by law-makers that their disincentive to labour force participation is among their drawbacks.
Lisa Philipps has also observed that tax law can act as an incentive or disincentive to intra-household transfers of wealth to the lower-earning spouse. 147 For example, Canadians are now allowed to "split" pension income with their spouses so as to obtain tax benefits. 148 However, the split may be purely "notional" -legal title to the pension income need not be transferred to the lower-earning spouse. If income splitting were to be dependent on actual legal transfers, then the economically weaker spouse would thereby be empowered during the relationship. This could reduce the economic challenges experienced by that spouse after relationship break-down, especially for those who cohabited in a non-marital relationship and are therefore not entitled to statutory property division. 149 While requiring legal transfers of property would increase the intrusiveness of the tax system, the legislature should consider whether this reform might bring about a more equitable distribution of property within intact relationships, and thereby reduce post-separation economic challenges.

III. B. 5. State Compensation of Caregiving
An alternative to discouraging earning-potential sacrifices is to compensate the individuals who make those sacrifices in order to perform caregiving tasks. Doing so may lead to them having more savings and economic independence with which to weather the shock of relationship dissolution. Some feminist scholars have argued that the state should compensate caregivers directly. 150 The Law Commission of Canada's Beyond Conjugality report proposed consideration of refundable tax credits for caregivers, or direct grants to them. 151 The Income Tax Act currently allocates tax credits both to parents of minor children and to caregivers for the elderly and disabled. 152 However other feminists, including Kathleen Lahey, respond that compensating caregiving would simply reinforce traditional gender expectations and push caregivers out of the workforce. 153 However, state compensation of caregiving has limited potential as a tool to promote economic independence after relationship breakdown. It is not clear that tax credits or even direct payments provided to a member of an intact relationship will be preserved for the benefit of that family member, as opposed to becoming part of the general "family finances." It might be possible to somehow segregate these funds for the personal benefit of the caregiver should the relationship eventually dissolve, e.g. by adding them to the Canada Pension Plan account of the caregiver. However doing so would mean that the financial benefit would not be available to the caregiver and his or her family at the time when the caregiving was actually happening.

IV. A. Responding to Challenges After Relationship Breakdown
Even if preventative initiatives are pursued, relationship breakdown will continue to confront Ontarians with legal and financial challenges. This section will address techniques for responding to these challenges after they arise. It will begin with the least adversarial methods, and work towards traditional civil litigation. Section D, below, will consider the costs and benefits of administrative responses to family challenges.
With regard to all potential responses to relationship breakdown, a key fact is that, as the Law Commission's Consultation Paper noted, family problems come in "clusters." 154 For example, while parenting disputes are fundamentally different from financial disputes, they present themselves within the same families, and family courts must information. 158 The province has also provided funding for internet-based family information initiatives. Statutes and case law are increasingly available for free online. 159 The Ministry of the Attorney General has recently expanded its "Family Law Resources" page, which now includes a comprehensive "frequently asked questions" section and pictures of sample courtroom layouts. 160 The Ontario Civil Legal Needs Project asked Ontarians about their familiarity and experiences with five public information services. 161 They found that "although only 1 to 8 per cent of those surveyed had heard of any of the websites, their satisfaction levels were very high (81 per cent and higher)." 162 This suggests that the quality and utility of these public information sources is very good, but the government needs to put more effort into publicizing them, so that more Ontarians may benefit.
More narrowly-focused online initiatives include the Family Law Education for Women (FLEW) site. 163 The central message of the FLEW site is that all Ontarians, regardless of ethnic background or family situation, have the right to the protection of our family law statutes. 164 The FLEW website appears to provide information which helpful and accurate for both women and men. It is unclear why it is branded as being "for women," given that our statutes and case law apply equally to men and women and given that men and women both need information about family law. Given that this web-site is funded by the provincial government, the government should ask that it be rebranded to emphasize its utility to all Ontarians.
The internet appears to be the most logical medium for delivering family law information to Ontarians. The Ontario Civil Legal Needs Project found that, even among low-and middle-class Ontarians, 84% have access to the internet. 165  However, these are not publicly available for free, 174

IV. A. 2. Increasing the supply and affordability of legal services
No matter how comprehensive and accessible, legal information is not a complete substitute for personalized legal services. 183 Services can be offered by lawyers, or by other professionals such as paralegals and social workers who have experience working with the family justice system. A central finding of the LCO's public consultations is that there is a broad diversity of different "entry points" to the family justice system, staffed by a wide variety of different professionals who provide services and information. 184 However, large numbers of Ontarians use the family justice system with little if any personalized assistance. The Ontario Bar Association recently found that that 40% of all civil litigants lack lawyers, and that the rate of self-representation among family litigants is even greater than this average. 185 In 2009, another report stated that approximately 70% of family litigants are unrepresented. 186 While some of these individuals do not wish to be represented, many if not most would like to have legal representation but do not believe that they can afford it. 187 A survey of Kingston family court litigants without lawyers published in 2005 found that 83% stated that they were unable to afford the legal fees. 188 The actual cost of family legal services varies widely. A survey of lawyers conducted by Canadian Lawyer magazine found that the average legal fee for a contested divorce in Ontario is $12,602. The average fee for a civil case culminating in a two-day trial was $45,477. 189 However, it also appears that many Ontarians obtain more affordable legal services, probably because their matters are not "contested" and do not culminate in trials. A 2009 telephone survey conducted for the Ontario Civil Legal Needs Project identified low-and middle-class Ontarians who had sought legal assistance for a non-criminal matter in the previous three years. 190 Among those who had obtained legal services, 28% said that the services were free, and an additional 19% said that they paid less than $1,000. 191 Legal Aid Ontario reported that, in 2008-2009, the cost of the average family client funded by that agency was $1826.00. 192 Nevertheless, the OCLN survey also found that many individuals experiencing family challenges have particular difficulty accessing legal services. 81% of those who had experienced this type of challenge in the previous three years had sought legal services, but 30% of those who did so "had difficulty" in obtaining it. 193 Among low-and middle-class Ontarians who had a civil justice problem but did not seek legal assistance, the perceived cost of lawyers was by far the most common reason for not doing so. 194 Lowering the cost of legal services would make them more accessible to However, it is very difficult to obtain comprehensive LAO-funded representation for private family law disputes which do not include child protection or criminal elements. 197 One recent report claimed that "over the past decade there has been a 30% drop in lawyers accepting certificates from family law clients who qualify for legal aid." 198 One of the most intriguing findings of the OCLN survey was that "One in three respondents … said they prefer to resolve their legal needs by themselves with legal advice, but not necessarily with the assistance of a legal professional. If the government wishes to reduce the cost and increase the accessibility of legal services without further public expenditure, then it might consider lowering the barriers to the private-sector provision of legal services. 204 At present, the Solicitors Act makes it illegal for anyone not "admitted and enrolled as a solicitor" to represent another individual in court. 205  have opened a discussion about authorizing paralegal family law practice. 209 This proposal was met with fierce opposition from Ontario lawyers, and was withdrawn before being considered. 210 The objection of many lawyers to paralegal family law practice was summarized by Mary Reilly, treasurer of the Family Lawyers Association of Ontario: Our concern is that family law is extremely complicated. You have to have knowledge of a lot of different pieces of legislation. It isn't a case of just giving them a couple of courses, and they're up to speed. 211 Certain areas of family law are more complicated than others, and Reilly's argument might be more valid for some areas than for others. One option would be to allow paralegal practice with regard to child support and custody and access, which are not, in most cases, legally complex. Property division, spousal support, and other issues could be reserved for lawyers. These latter issues are both more complex and more likely to be relevant by wealthier individuals who are better able to afford lawyers' fees.  215 Individuals who had used the family justice system and had obtained services from lawyers and/or non-lawyers were asked whether they would recommend the services they obtained. Lawyers did not produce higher rates of client satisfaction than most of the alternative service providers. 216 It would be very useful to study the satisfaction rates of Ontario clients of family lawyers and alternative family service providers. 217 Such a study might confirm or deny the proposition that only licensed lawyers are capable of providing useful legal services to Ontarians experiencing family challenges. 218 Another option is to restructure the way in which legal services are provided. In the traditional model, a lawyer is retained to represent a client until the client's legal problem is resolved. Fees are calculated on an hourly basis. While the client may withdraw from this arrangement at any time, he or she often has little idea at the outset how much it will cost to resolve the problem. In addition to the hourly rate itself, the unpredictability of the final bill is one of the factors which make legal services seem unaffordable to middle class Ontarians. Richard Susskind proposes an alternative to this model, which would involve a lower and more predictable price tag for the consumer:

Short
decomposing legal work that has been, or should be undertaken … into constituent tasks and allocating these to the least costly sources of service that we can find, so long as this multi-sourcing and mass customization does not fail to deliver the requisite quality of guidance that the non-lawyer needs. 219 "Unbundling" of legal services has been identified by the Ontario Civil Legal Needs project as a possible way to increase affordability. 220

IV. A. 3. Alternative / Appropriate Dispute Resolution (ADR)
ADR can be defined as any structured dispute-resolution process other than courtroom adjudication. While the "A" in ADR once stood for "alternative," it is increasingly being used to stand for "appropriate." 221 This signifies that adjudication is no longer the privileged or primary avenue for the resolution of family law disputes. 222 However, the word "appropriate" also leaves open the possibility that a litigation process may in some cases be more appropriate than other alternatives. For example, it has been argued that, at least in cases of power imbalance of domestic abuse, the structured environment of a court-room offers the best opportunity for the rights and interests of vulnerable parties to be protected. 223 The rise of ADR in family law can be traced to the "divorce revolution" which began in the late 1960s. As a result of legal and social changes, courts were newly confronted with large numbers of family disputes. 224 They responded, in part, by experimenting with a wide variety of programs and interventions, the primary purpose of which was to encourage settlement. 225 These public sector, court-connected programs and interventions were an early form ADR, although most ADR in Ontario today is conducted in the private sector.
The continuing demand for ADR services is created by the fact that family litigation is very expensive for the parties, their children, and the state. Scholars, policymakers, and Canadians confronting family challenges therefore look for other ways of resolving family disputes which impose fewer costs. 226 Nor is the case for ADR made exclusively by critics of lawyers --lawyers themselves are embracing it. 227 For example, the Ontario Bar Association Family Law Section, a group of lawyers, recently joined with two ADR organizations in calling for "non-adversarial options" to become the "primary framework for resolving family matters." 228 Today, the most common forms of ADR in the Ontario family law context are collaborative family law, mediation, and arbitration. The latter two may be practiced independently of each other, or may be combined as mediation-arbitration ("Med-Arb"). 229 Beyond these core techniques, some scholars would give ADR a broader definition, for example including solicitor negotiation or custody evaluation under this rubric. 230 The evaluation literature has sought to weigh the costs and benefits of different types of ADR. Commonly, a specific type of mediation, assessment, or parent education is evaluated in terms of the number of cases which settled during or immediately after the process. 231 While these studies often have very small sample sizes, 232 they do help establish what programs help reduce the costs of litigation.
Qualitative techniques such as interviews and surveys have been deployed in some of these evaluations in order to more comprehensively analyze costs and benefits. 233 Comprehensive qualitative evaluations of family process are more labour-intensive than quantitative reports on settlement rates, and is therefore often conducted by the state itself 234 or with public funding. 235 While such small scale pilot projects are perhaps the most common method by which costs and benefits of alternative mechanisms have been studied, a valuable set of sources go beyond assessing a single program.
Experiments and literature about costs and benefits have originated in state-and province-wide initiatives 236 and in partnerships between universities and courts. 237 Interjurisdictional comparisons are rare, but very helpful when they do appear. 238 Mediation is perhaps the oldest and most widespread form of ADR used for family challenges. In Ontario, free court-adjunct mediation is available in the 17 courthouses which are part of the Family Court Branch of the Superior Court of Justice (also known as the "unified family court.") 239 Mediation is also available at many of the other family courts. Full or partial settlement is reached in 79 percent of Ontario family mediations. 240 Mediation is usually less costly and more therapeutic than litigation, 241 and there is some evidence that resolutions reached using this dispute-resolution technique are more durable than those which are the result of adjudication. 242 Jennifer McIntosh and her colleagues compared found that including children in mediation produced more durable agreements. 243 On the other hand, mediation may produce unjust results in the many cases in which power imbalances and/or domestic violence are factors. 244 From a cost-benefit point of view, the great advantage of mediation is that it can produce durable settlements using a very small resource input. The parties need not have lawyers to participate in mediation. A successful mediation obviates the need for future judicial intervention, thereby potentially saving public resources given that mediators are much less costly to the taxpayer than judges are. These facts make mediation a very compelling option in an environment of resource scarcity like that which prevails in the Ontario family justice system. The provincial government should ensure that free or affordable mediation is available to all Ontario family litigants for appropriate cases.
Child assessment by mental health professional or social worker in a parenting case can arguably be considered another form of ADR. This categorization is questionable because the primary function of assessors is to identify and recommend the parenting arrangement which would be in the best interests of a child or children . 245 This evaluative function is distinct from the dispute-resolution function which is at the core of ADR. However, there is substantial evidence that neutral assessments generally speed the parties to a negotiated resolution. 246 Assessments sometimes produce settlement incidentally, 247 and sometimes they do so because the assessor consciously tries to achieve this result. The provincial government funds child assessments conducted by social workers from the Office of the Children's Lawyer. 248 Although the applicable statute defines these assessments as purely evaluative or forensic in nature, there is compelling evidence that these social workers also encourage the parties to settle by engaging in informal mediation. 249 These informal mediation efforts by the OCL's social workers in custody and access cases should be encouraged in appropriate cases, because early settlement of the case is usually in the best interests of the child.

A new section should be added to the Children's Law Reform Act which acknowledges and protects the mediative function of OCL social workers in custody and access cases. 250
Collaborative family law (CFL) is a relatively new initiative, 251 which is quickly gaining adherents in Ontario. 252 The distinguishing feature of collaborative family law is the "Collaborative Practice Participation Agreement." 253 This contract prevents the lawyers involved from representing the parties if litigation occurs and which also commits everyone involved to a cooperative and constructive approach to disputeresolution. CFL seems to consistently produce durable settlements while avoiding litigation. However CFL is not itself without costs. Insofar as it requires the parties to both retain lawyers as well as, often, other professionals, it is beyond the financial reach of most Ontarians. Like mediation, it may lead to vulnerable parties settling for markedly less than they might obtain at trial, 254 insofar as it de-emphasizes legal entitlements in favour of interest-based negotiation. 255 While CFL is certainly a valuable option for Ontarians who can afford it, it is not clear that the provincial government should be involved in its provision.
Parenting coordination generally takes place after a parenting agreement or order is in place between separated parents. 256 A parenting coordinator is generally tasked with mediating and arbitrating smaller disputes about parenting between the parties so as to avoid recourse to litigation, and with ensuring regular and conflict-free access visits. 257 In some jurisdictions "special masters" are appointed by the court and have similar functions. 258 In Ontario, however, parenting coordinators are usually empowered by an agreement between the parties. Like CFL, parenting coordination is useful for those who can afford it, but it is not a realm in which the provincial government has a direct role to play.
Arbitration is the form of ADR which is most similar to litigation. In arbitration, the parties sign an "arbitration agreement" which empowers a third party to resolve their dispute. Arbitration may or may not be preceded by a "mediation phase," in which the arbitrator seeks to mediate the dispute. If so, it is known as "mediation-arbitration," or "Med-Arb." In Ontario the Arbitration Act governs arbitrations generally. 259 The Family Arbitration regulation, among other things, requires that those who arbitrate family disputes have certain types of training. This regulation also requires all family arbitrations to be conducted in accordance with the law of Ontario or the law of another Canadian jurisdiction. 260 Arbitration (with or without a prior mediation phase) offers the parties finality, the ability to craft an appropriate procedure for each case, and an expert decision-maker. 261 However arbitration's confidentiality may inhibit the development of the law, insofar as the decisions are not reported and cannot be used as precedents.
Private arbitration is not available to most Ontarians due to the paucity and high fees of the specialist lawyers who provide this service. 262 Nonetheless, arbitration proponents say that it is actually less costly to the litigants than courtroom litigation is, despite the fact that private arbitration requires the parties to pay the arbitrator. 263 In a recent lecture, prominent Toronto arbitrator Lorne Wolfson identified two key reasons for this cost advantage. 264 First, arbitrators are experts in family law, and need not be "educated" by the parties' lawyers. By contrast, some judges are generalists, and if so the parties must pay their lawyers to prepare and present submissions educating the judge about the applicable law. Second, Mr.
Wolfson stated that arbitrators can dedicate large chunks of time to a single case -up to a full day at a time. A judge, on the other hand, can often only allocate 1 hour at a time to a case or settlement conference in a family law dispute. 265 Because one hour is seldom sufficient, the parties must return weeks or months later. Their lawyers must then be paid to learn the case and travel to court again.
If it is true that family arbitration is cheaper for the litigants than going to court, this might point to substantial cost savings which might be achieved through family court reform. If family judges were all specialists, and if they were allowed to allocate longer continuous stretches of time to each case, then it is possible that the total number of court room hours spent per case could be dramatically reduced. This could, in turn, create substantial and immediate public savings. Ontario should explore the possibility that features of the private family law arbitration system might be imitated by the public court system.

IV. A. 4. Litigation
Litigation might be considered the "last line of defence" in Ontario's response to the challenges arising upon intimate relationship breakdown. Today, Ontario's family and general courts administer a system of statutes and common law rules which has been totally re-written since the 1967 introduction of the Divorce Act. 266 All Ontario family litigation is subject to a corpus of key statutes, 267 common law principles, and procedural rules. 268 The Family Law Rules apply to all family disputes in all Ontario courts. However, Ontario has a geographically heterogeneous family law procedure, in which remain substantial differences between regions and courts. This section will briefly discuss some of the distinctive features of family litigation in Ontario, before identifying some of the costs and benefits of litigation as a response to family disputes.
There are three types of court Another important difference between Ontario courts is the nature of the judges.
In some locations family matters are heard by specialist judges, who either deal exclusively with family law disputes or who have family law among two or three areas of exclusive focus. In others, the judges are generalists who hear the whole gamut of legal disputes, including family law matters. In general, smaller communities are less likely to have specialist family law judges, because the quantity of family disputes in these areas is not sufficient to occupy a judge full-time. There is an active debate in the literature about whether the quality of adjudication is correlated to whether or not the judge is a family law specialist. 273 Many family lawyers prefer specialists, 274 but there does not appear to be quantifiable evidence about whether specialist judges produce tangibly different results for litigants. The "Recapturing and Renewing" report proposed what seems a reasonable compromise position between judicial generalism and judicial specialism in family court: generalist judges should be appointed to hear family cases for terms of at least six months. 275 There are a number of other points of divergence among Ontario family courts.
While some jurisdictions (including Toronto) appear to have enough judges to make a system work in an orderly fashion, 276 other jurisdictions (particularly those in the "905" area around Toronto) lack sufficient judicial resources to deal with the demand. 277 Judicial resources should be distributed so as to minimize regional disparities in access to family justice. Parenting information sessions are mandatory in some courts, voluntary in others, and entirely unavailable in many others. 278 There are also reportedly some divergences among the forms used at different courts. 279 Conferences under Rule 17 of the Family Law Rules are scheduled in different ways at different courts. For example, in Brampton a judge will have three conferences scheduled concurrently at 10 a.m., and shuttle between them. 280 In Toronto, one conference is scheduled every hour or every two hours. 281 These are all examples of regional variations and experiments in family court administration. They are evidence that litigation is not "monolithic" or totally traditionbound in the family arena. A simple form of cost-benefit analysis would involve comparing the costs and benefits of these alternatives which are currently in place, identifying best practices, and exploring potential to incorporate them elsewhere when appropriate. While there may in some cases be good reasons for regional variation, family court judges and administrators should be encouraged to identify best practices and spread them throughout the province where appropriate.
What are the costs and benefits of litigation as a way to resolve family conflict, by comparison to alternatives? While litigation is almost a dirty word among some family conflict, professionals, its benefits should not be ignored. Both in Ontario and abroad, the professionals who work in family courts have made substantial efforts to fine-tune civil procedure to respond to the unique characteristics of family cases. 282 Litigation, and facilitating access to the court, may have benefits in terms in terms of access to justice, 283 perception of justice, 284 and respect for the court. 285  Some scholars say that people feel more satisfied with adversarial modes of dispute resolution as compared to inquisitorial or mediatory ones. 288 Carol Smart and Vanessa May note that, at least in principle, "the courts can … function as a mechanism through which the parents can express their hurt and grievances, and in this way the legal process can offer psychological containment of disputes and conflict." 289 However, family litigation appears to many of the litigants to be unfair. The OCLN telephone survey found that, among low-and middle-income Ontarians who had resolved a family dispute within the previous three years, 45.7% said the process was "unfair." 290 This suggests that the status quo, despite its emphasis on due process, is not convincing Ontarians that justice is being done.
One genuine benefit of litigation as a dispute-resolution mechanism is its openness to public scrutiny. It is safe to conclude that the average legal fee for a contested divorce would constitute an enormous financial blow for the average family. Moreover, these costs come at a time when people are likely to be especially ill-equipped to pay them, given the other financial pressures which are likely to arise on relationship breakdown, such as the need to relocate. This is particularly true for a spouse who left or curtailed involvement in workforce during the relationship. 298 Each family lawyer's bill will likely be paid by a single individual, given that the family relationship has broken down. Comparing the average legal bills against the incomes of median "lone-parent families" and "unattached individuals" establishes the inaccessibility of family legal services to middle-class Ontarians even more dramatically.
The average 2009 legal fee for a contested divorce in Ontario ($12,602) is equal to 58% and 40% of the projected median 2009 incomes for unattached individuals and loneparent families, respectively.
Nor are the lawyers' fees the only financial expense. The following finding is from the Ontario Civil Legal Needs project, which conducted focus groups with justice system workers: In addition to actual legal costs, the focus group participants pointed out a number of associated costs of accessing services that their clientele were not generally aware of and therefore not prepared for. Among these costs were those related to transportation, obtaining documentation, trial costs outside of the lawyer's services (such as expert witness fees), and childcare costs (as childcare would sometimes be needed to enable a client to attend hearings and trials). 299 Family litigation also has a very substantial cost in time. In some jurisdictions, litigants must return to court many times before their matter is called, due to insufficient judicial resources. Ontario in income taxes alone would have been substantial. While this claim was probably extreme and was not allowed by the court, it provides some indication of the cost in time of family litigation.
The costs of litigation are paid directly by adults, but they are also paid indirectly by the children of these adults. Parenting requires time, money, and energy, and family litigation can easily consume these scarce resources to the extent that it impairs parenting. 304 Julie Lassonde conducted a round-table consultation with children who had experienced challenges related to parental separation, and found substantial awareness of the price of litigation and its impact on the family's financial security. 305 Occasionally, children are involved directly in family litigation. 306 There is a debate about the impact of litigation-involvement on children, but at least in some cases it can be traumatic. 307 This is especially true if children are asked to choose or take sides as between their parents, and inexperienced judges or lawyers may do so. 308 Assessment by a mental health professional or social worker is a much more common form of child involvement in family litigation, 309 but some say that this too can be stressful for children. 310 Children also pay a cost of family litigation because litigation increases inter-parental hostility, 311

IV. B. Administrative and non-individualized responses to private support entitlements
This section will survey the present reality and potential future application of administrative solutions to family support obligations in Ontario. The adjective "administrative" is used here to refer to the resolution of disputes and enforcement of obligations by state agencies which are not courts, and by state employees who are not judges. 316 This Part will first review the law of child support with emphasis on the elements which may make it suitable for administrative solutions. It will then identify administrative responses to family disputes which have already been implemented in Ontario and elsewhere. The author will then argue that, at least with regard to guideline child support, administrative solutions could have substantial benefits in increased compliance and reduced process costs for parties and the state. The costs or drawbacks of such reforms would come in the form reduced potential for discretionary and customized judicial decision-making.

IV. B. 1. Guideline Child Support
The two primary support obligations in Canadian family law are child support and spousal support. Spousal support has been made more predictable by the creation of the Spousal Support Advisory Guidelines, 317 and could conceivably be subject to administrative solutions. However child support, and especially "guideline" child support, is the family law remedy which lends itself most obviously to administrative responses. "Guideline" child support is the amount payable according to section 3 of the Child Support Guidelines (CSG). 318 The CSG require only two inputs in most cases: (i) individual income of the payor, and (ii) the number of children for whom child support is to be paid. Using these inputs, the amount owing is provided by a series of tables which are part of the legislation.
Of course, Canadian child support law is more complex than simply the calculation of Guideline amounts. In some cases, support must be calculated in a more discretionary fashion -e.g. if custody is shared or if the payor's income is in excess of $150,000 per year. 319 Even if the Guideline amount is payable, additional amounts may also be owed for "special expenses. 320 " Determining the payor's income can in some cases be complex, especially if the payor is self-employed. 321 However in the substantial majority of cases, once payor income and number of children are known there is a readily calculated guideline amount which will be owing. There is, in these cases, relatively little need for sophisticated or individualized decision-making about the Guideline support obligation. It is for this reason that Ontario family court judges can and do make guideline child support orders at pre-trial conferences, in the absence of full argument and record. 322 It is also for this reason that guideline child support is an area of our family law in which moving away from a judicial model towards an administrative model should be considered.

IV. B. 2. Status quo in Ontario
In Ontario, the court system retains primary responsibility for determining support obligations. However, some movement towards an administrative model has already taken place. This is most obviously true with regard to support enforcement, but is also somewhat true with regard to determination and recalculation of support obligations.
The most prominent administrative element of family support procedure in Ontario is the Family Responsibility Office (FRO). 323  Effect of recalculation (2) Subject to any review or appeal process established by the regulations made under this Act, if the child support service recalculates an amount payable for the support of a child under an order, the recalculated amount is, 31 days after the date on which the parties to the order are notified of the recalculation in accordance with the regulations, deemed to be the amount payable under the order. 333 These provisions appear to envision an administrative "child support service" which could be responsible for recalculating child support in light of payor income changes.
However these remain unproclaimed as of June 21, 2010 and the regulations to which they refer have not been made public.

IV. B. 3. Status Quo in Other Provinces
All of Canada's provinces have Maintenance Enforcement Programs (MEPs) analogous to Ontario's FRO; these were created in the 1980s and 1990s. 334 The essential functions of MEPs are (i) registration of cases; (ii) processing of payments; (iii) monitoring, and (iv) enforcement. 335 Roughly one third of all Canadian family law cases in which child support is owed are enrolled with a MEP. 336 In the West and North of Canada, the MEP programs are run on "opt-in" basis: the recipient can choose whether to enrol. In the remainder of the country, they are generally "opt-out:" all support orders are enrolled and recipients and payors can only remove themselves under specified conditions. 337 While enforcement is the element of support law in which administrative solutions are most widespread in Canada, recalculation is also the subject of several recent administrative initiatives. As noted above, any change in payor income is likely to constitute grounds for upward or downward revision. Because few people have incomes which are totally constant from year to year, many payors and recipients are legally entitled to seek a variation.
The Divorce Act permits the federal government to enter an agreement with a province "authorizing a provincial child support service designated in the agreement to … recalculate, at regular intervals, in accordance with the applicable guidelines, the amount of child support orders on the basis of updated income information." 338 Several such provincial child support services have been established. According to a federal Department of Justice survey conducted in March of 2008, they exist in Prince Edward Island, Manitoba, British Columbia, and Newfoundland. 339 Another was subsequently launched in Alberta, 340 and such programs may exist in other provinces as well.
Newfoundland was the first Canadian province to initiate an administrative child Services." However, several provinces have special legal aid or mediation programs for initial establishment of support. 347 In Québec, the state has a somewhat more active role in child support collection and enforcement. All child support payments are made to the Minister of Revenue unless an exemption has been granted. 348 If the support debtor is in arrears, the Minister may also in some cases provide advances of money to the support creditor.
These advances are limited to a maximum dollar amount of $1,000 and may not continue for more than three months. 349 One impediment to implementing this system in Ontario is that this province, unlike Québec, does not have its own Ministry of Revenue. That task is performed on Ontario's behalf by the Canada Revenue Agency

IV. B. 4. Benefits of Administrative Solutions
Increased Compliance and Durability. With regard to child and spousal support obligations, compliance is a substantial challenge, 350  Dynamics data set in order to study support payments in Canada. 356 This survey asked respondents questions about how much they paid and/or received in child and spousal support every month, as part of a general questionnaire about income. 357 Child support is directly tied to the payor's income in most cases, and while spousal support is more complex it is also correlated to payor income. One would therefore expect that support payments would change roughly as often as payor incomes do. However Millar found that income fluctuates much more often and more dramatically than support payments.

Millar elaborates on his findings:
The fraction of household income, particularly for support payors, is much lower than would be expected awards dictated by the Canadian child support guidelines. The finding supports the contention that child support is drifting away -on average, lower -from the guidelines as time passes, accounting for the lower than expected amounts of child support as proportion of payors' income. 358 A key benefit of administrative initiatives in family support law is their potential to increase compliance. Indeed, this is the primary purpose of the maintenance enforcement programs schemes which represent the most substantial administrative initiatives in Canadian family law. 359 The deduction of support at source (e.g. by the employer of the support obligor) removes many of the opportunities for non-payment.
The expansion of administrative initiatives, for example into the initial establishment and subsequent recalculation of support obligations, might further increase the number of parents who receive the amounts to which they are entitled by law. It could also bring relief for the payors who have suffered involuntary decreases in income and are therefore entitled to reductions in the obligation. For these among other reasons, Paul Millar suggests that an administrative agencies should perhaps play a stronger role in child support recalculation. 360 Reduced Process Costs for the Parties. Using litigation to determine and enforce guideline child support involves substantial process costs for the parties. 361 Parents, especially single parents, are already under substantial time and financial stress.
Having to go to court may therefore be especially burdensome for them. Administrative initiatives have the potential to reduce the process costs on parents who receive or pay child support. Shelley Kierstead describes administration recalculation schemes as the "ideal manner by which to foster greater certainty and relieve recipient parents of the potentially daunting burden of initiating negotiations for revised support obligations with a former partner." 362 The benefits which Kierstead identifies would also be enjoyed by payors who experience involuntary drops in income. 363

IV. B. 5. Costs and Drawbacks of Administrative Solutions
Lack of individualized legal advice and help.  365 The Director of FRO replied that this office, as a neutral maintenance enforcement program enforcing support orders in Ontario, is unable to provide legal advice to either a support payor or a support recipient. 366 While the Ombudsman found this explanation unconvincing, 367 there are good reasons why administrative agencies must be cautious about giving legal advice to individuals.
To do so can expose them to liability insofar as they lack the resources and statutory mandate to competently offer legal advice. The reality is that parties are unlikely to receive compassionate and individualized service from an administrative agency such as FRO or the Canada Revenue Agency. This is not necessary the consequence of incompetence or wrong-doing on the part of the agency; it is simply a reflection of the nature of government agencies. Personalized and emotionally responsive service is more likely to come from a lawyer or paralegal who is directly retained by the client.
The Disempowering Effects of Bureaucracy. Second, working with an administrative agency may also be more disempowering than working with an individual legal service provider. Lawyers are, at least in principle, responsible to and directed by their clients. By contrast, Marin characterized the relationship between Mr. F and the FRO as "one of power and dependency," with the agency in the driver's seat. Marin noted that s. 6(7) of the Family Responsibility and Support Arrears Enforcement Act (the statute which empowers FRO) prevents the parties themselves from initiating enforcement actions once the order has been filed with FRO. He therefore concluded that FRO "has the legal duty to enforce support arrangements, the discretion to use a range of tools to do so, and imposing powers. Meanwhile, the 'support recipients' … have their enforcement rights and interests left entirely in the hands of that Office." 368 Inefficiency and Ineffectiveness of Administrative Agencies. Third, it should not be assumed that an administrative agency will discharge its assigned functions in an efficient and effective manner, even when those functions appear to be straightforward and the agency's powers appear to be plenary. As the status quo compliance figures indicate, the provinces' Maintenance Enforcement Programs described above are by no means completely successful in securing support payment. 369 The Provincial Auditor of Ontario sharply criticized FRO in 2003 for its lack of effectiveness: We concluded that the Family Responsibility Office did not have satisfactory systems and procedures in place for initiating contact and taking appropriate and timely enforcement action where payers were in arrears on their family-support obligations. In fact, it is our view that, unless the Office takes aggressive enforcement action, supported by effective case management and significantly improved information technology and communications systems, it is in grave danger of failing to meet its mandated responsibilities. We found that the Office's services were impaired… 370 A 2005 follow-up by the same office found that "some progress has been made in implementing the recommendations, but "further progress on several recommendations depends on the successful implementation of a new case management system." 371 While there are tens of thousands of Ontarians in arrears on child support, Good Parents Pay has only 39 profiles publicly available. Clearly, whatever impact this administrative initiative has can only be a "drop in the bucket." Other potential costs or drawbacks of administrative initiatives should also be recognized. Removing an area of the law from the domain of the courts may diminish the ability of the common law to develop along with society. 372 Especially in the absence of effective judicial review, administrative agencies may abrogate the rights of citizens in an irresponsible or authoritarian fashion.
Finally, family courts can offer "one-stop-shopping" to Ontarians. Property division and parenting disputes may be resolved along with support issues in a single process. If those family disputes which are most amenable to administrative decisionmaking (i.e., guideline child support) were to be handled by a separate agency, Ontarians might have to engage in two or more separate processes to resolve their family challenges. This duplication of processes would entail substantial additional process costs. As Ontario explores the potential of administrative responses to family challenges, it should seek to maximize their benefits (increased compliance and potentially reduced process costs), while reducing their costs (such as citizen disempowerment, bureaucratic inefficiency).

IV. B. 6. The potential role of the Canada Revenue Agency
Among the numerous ways in which administrative decision-making in family law could be expanded, one of the more dramatic and comprehensive would be involving the Canada Revenue Agency (CRA) in child support determination, recalculation, collection and payment. In Quebec, the Minister of Revenue is actively involved in child support collection and payment, and this model could be expanded across the country.
There are several potential advantages to this idea. As noted above, determining the income of self-employed individuals is one of the thorniest challenges in child support law. The CRA is already in the business of precisely determining individual income, in order to assess income tax owing. There might be significant efficiencies in allocating the task of income-determination for child support purposes to the CRA as well. With regard to enforcement, the CRA also has the legal powers and the expertise to collect income tax which is in arrears. These powers might equally be used to collect child support. Finally, the CRA already has some involvement in family disputes, e.g.
under the Family Orders and Agreements Enforcement Assistance Act. 373 However, giving responsibility for child support to the CRA would certainly involve that agency in matters with which it has no experience or institutional expertise.
For example, the determination of biological parentage involves genetic testing of individuals and the application of legal presumptions. There are also discretionary elements of child support which call for individualized decision-making. 374 Finally, there are constitutional and political impediments to having the CRA involved in child support, which might or might not be overcome. 375 The province should explore and discuss with the federal government the potential of involving the CRA in family support administration.

V. CONCLUSION
In applying cost-benefit analysis to post-relationship family challenges, this paper has asked three questions which are perhaps more familiar in public health than in legal discourse. First, why does the unhealthy condition in question arise? Second, how can the condition, or its worst symptoms, be prevented before they arise? Third, given that prevention will not be fully successful, how should we respond to or treat the problem when and to the extent that it arises within the population?
Each potential response to family challenges has its own constellation of costs and benefits. Only some of these costs and benefits are capable of quantification and comparison. This paper has sought to identify reforms which seem to have benefits in excess of their costs. Harmonious with the findings of the Law Commission's public consultations, many of these proposals involve moving the point of public intervention earlier in the lifespan of the family, or earlier in the lifespan of the conflict. The Law Commission may conclude that, in Ontario's response to post-separation family challenges, an ounce of prevention is indeed worth a pound of cure. 11 "Intimate relationships between adults" includes both marriages and non-marital cohabitational relationships. Statistics Canada estimates that 38% of recent marriages will end in divorce before the 30 th anniversary. (