by Thomas Cromwell

Alberta has been engaged for several years in an ambitious family law reform effort. I spoke to Diana Lowe, co-lead of the Reforming the Family Justice System initiative, about what they have been doing and what’s ahead. Here is what she told me.

TC: What was the impetus for Alberta’s family law project and what are its objectives?

DL: The Reforming the Family Justice System (RFJS) initiative was inspired by two very different but important pieces of work. The first is new scientific knowledge about brain science and brain development, which includes understanding the impact of toxic stress and how it is harmful to children’s brains. This is the kind of stress that occurs when families have unresolved disputes and children are exposed to fighting between parents. Brain science tells us that fighting between parents actually harms the development of children’s brains. The effects are physical as well as mental, impact the child throughout their life, and in fact can be intergenerational.

The second is the recommendations in the reports of the national Action Committee on Access to Justice in Civil and Family Matters (Action Committee). The Action Committee is made up of leaders from across Canada, and published five reports in 2013, which are available online here.

The name we gave to this initiative is “Reforming the Family Justice System,” but we increasingly refer to it as “reimagining” the family justice system. In short, the RFJS is aimed at wholesale systems change. The change we’re seeking in the RFJS is not the traditional focus of access to justice initiatives, which aim to improve and increase access to legal processes and services. Rather, we seek well-rounded solutions that support families as they restructure, and most importantly, ensuring that children are safe and able to thrive even as their families are changing.

TC: Has the initiative identified the main problems that need to be solved?

DL: We’ve developed a Theory of Change that guides us in our work. It recognizes that “family justice issues are primarily social, relationship and financial, that contain a legal element.” By this, we understand that we need to untangle social, relationship and financial issues from legal issues, and create paths to empower families to obtain the social, relationship and financial supports that they need to address these problems, outside of adversarial legal processes and away from the courts. We are recognizing that legal — adversarial — responses to what are primarily social, relationship and financial problems, cause harm to families.

TC: Can you explain what you mean by “Theory of Change”?

DL: The concept of a Theory of Change is commonly used in systems change processes (it is described in detail here). Our work on the RFJS Theory of Change began in December 2014, and was based on the recognition that “… relationship breakdown is not a legal event that has some potential social consequences; it is a social phenomenon that has some legal consequences.” (Action Committee, Family Justice Working Group Report, Beyond Wise Words at p.14).

Facilitators led a number of different groups of Convenors and Collaborators through discussions which encouraged the group to really drill down to the systemic causes for the problems in the family justice system. Participants discussed why these causes exist, including what the worldview is that creates and fosters them, and what society’s basic myths and metaphors are about family justice, as these are part of our current mental model, or culture, which is a barrier to change. The group then focused on the new mental model that we want to create, and on high-level strategies to move forward. What made sense to the group was that our Theory of Change would follow a progression from problems, through strategies to outcomes, filtered through the lens that recognizes “Family justice issues are primarily social, relationship and financial, that contain a legal element.”

The Theory of Change for the RFJS is a living document that helps us maintain our focus on the “big picture” and on what is required to support the changes we are seeking. It helps us to be more explicit about the change that underpins the RFJS, to see where our various initiatives and areas of work fit into this big picture, and where we can integrate and align efforts to achieve the desired impact. It also helps us identify indicators for evaluation.

This is the first of a two-part series.

This article originally appeared on The Lawyer’s Daily on July 23, 2018. It is the ninth article in The Honourable Thomas Cromwell’s exclusive Lawyer’s Daily column dedicated to access to civil and family justice.
The Honourable Thomas Cromwell served 19 years as an appellate judge and chairs the Chief Justice’s Action Committee on Access to Justice in Civil and Family Matters. He retired from the Supreme Court of Canada in September of 2016 and is now senior counsel to the national litigation practice at Borden Ladner Gervais.