Shaping Substantive Law to Promote Access to Justice: Canada's Use of Child and Spousal Support Guidelines

Abstract

Discussions of the crisis in access to family justice tend to be dominated by a focus on procedural and institutional issues. The list of issues is a familiar one — clogged courtrooms, complex procedures, high costs, limited public and private resources, lack of access to legal advice and representation, and the turn to alternate methods of dispute resolution and private settlement. Without in any way detracting from the importance of those issues, this paper focuses on substantive law, asking us both to think about substantive law reform as one way of responding to some of the problems of accessibility to family justice and to recognize the inter-connectedness of process and substance in the family justice system. More specifically the focus will be on the turn away from discretionary standards toward more rule-like provisions as a response to the increasing emphasis in family law systems on efficient dispute resolution and settlement outside of court. The evolution of the Canadian law governing financial relief, in particular the development of formulaic, income-sharing guidelines for the determination of child and spousal support, will be drawn on as a primary example to illustrate both the possibilities and limitations of substantive law reform in increasing access to family justice.

Keywords: spousal support, child support, family law