Access to Justice and the Adversarial System: The Times, they are a Changing
One of the most complicated issues facing the legal field in the modern age is access to justice.[1] The term “access to justice” does not have a specific legal definition. Instead, it is a general ideal that the profession aspires to and work towards. While it can be difficult to define, the government of Canada has provided the following broad definition:
‘“Access to justice” exists when people can pursue their goals and address their law-related problems in ways that are consistent with fair legal standards and processes. They must also be able to obtain, understand, and act on information and services related to the law, where necessary, to achieve just outcomes.’ [2]
Specifically in family law, the profession has taken great strides in improving access to justice for the most marginalized individuals in the system. However, there is still plenty of work to be done. Improving access to justice is not as easy as it sounds. Additionally, it doesn’t sound easy to begin with. In this article, I will be highlighting some of the major developments in the field which have improved access to justice, and some problem areas where access to justice needs to be developed.
Access to justice in family law. Why is it so difficult?
A major hurdle to improving access to justice in family law is the nature and traditions of the legal system itself. Our legal system is, at its core, an adversarial system. This means that our legal system functions based on the principle that the best result is achieved through a competitive process. In an adversarial system each party must present their argument and evidence in support of their version of events to the court. The court will then determine whose position is most correct pursuant to relevant legislation and legal precedent.[3] To participate in an adversarial system, you must know the rules of evidence and how the court conducts the contest between the parties. This is a complicated process, and just one reason why law school takes so long.
There are advantages and disadvantages to an adversarial system. However, there has been an increase in the opinion that such a system is not the best approach for most family law matters. Many argue that the adversarial process is too costly, complex, and slow to efficiently handle family law disputes. This results in barriers to access to justice. Family law matters are about people dealing with the fallout of their relationship, a highly sensitive and context specific process. Importantly, the relationships between the parties do not terminate once judgment has been handed down, as they would in a criminal or civil proceeding. In family law, especially when children are involved, the relationship between the litigants must continue in some form after the judgment. Critics argue that the adversarial “You vs. Me” mentality which is central to our legal process does more harm than good in the majority of family law matters.
However, even in family law there are certain scenarios where the adversarial system is best suited. For example, where there is a history of abuse between the parties. This applies also in any other context which would result in an unequal position between the parties. The adversarial process is absolutely necessary to ensure the rights of the vulnerable party are protected adequately.
Recent Developments Improving Access to Justice
Despite these challenges, there have been important developments have improved access to justice in family law over the past several years:
1. Remote Proceedings and Digital Tools
The COVID-19 pandemic forced courts and legal professionals to adapt rapidly to new technologies. Remote hearings, electronic filing systems, and digital service methods have significantly improved accessibility. This is especially true for individuals living in rural areas or those with mobility limitations. These changes are now largely here to stay. Consequently, they continue to reduce both the financial and logistical burdens of participating in legal proceedings.
2. Increased Focus on Self-Represented Litigants
A growing proportion of family law litigants appear in court without legal representation. In response, courts and justice system stakeholders have made efforts to simplify language provide more accessible court forms offer public legal education resources. Legal information websites, duty counsel services, and simplified court guides have all helped reduce the knowledge gap for self-represented individuals.
3. Case Management and Alternative Dispute Resolution (ADR)
Case management conferences and mandatory mediation have become more common to resolve disputes earlier in the process. encourage a less adversarial, more collaborative approach to dispute resolution especially in cases where the parties can communicate constructively. Early judicial involvement can also streamline issues and reduce court time.
Ongoing Challenges
While meaningful progress has been made, several persistent issues continue to obstruct access to justice in family law:
1. Complexity of Disclosure Rules
Full and timely financial disclosure is essential in family law, but the rules around disclosure are complex. For instance, parties cannot refer to settlement conference materials during litigation. Additionally, hearsay rules are often misunderstood. These legal technicalities can frustrate even well-intentioned litigants, especially those who are self-represented. As a result, disclosure is frequently delayed or incomplete, which not only drags out proceedings but also increases hostility between the parties.
2. Limited Public Legal Education
Although online resources are growing, many individuals still struggle to access and understand basic legal information. Legal rights and obligations can vary significantly by jurisdiction. The materials that do exist are often written in language that is difficult for non-lawyers to grasp.
3. Lack of Integrated Services
Family law issues often intersect with housing, mental health, immigration, and financial challenges. However, the legal system tends to treat these matters in isolation. A more integrated, interdisciplinary approach—combining legal assistance with social services—could help vulnerable individuals navigate the system more effectively.
4. Financial Barriers
Legal aid remains underfunded in many jurisdictions the cost of hiring a private lawyer is out of reach for many middle-income individuals. This “justice gap” leaves many people caught between being too well-off to qualify for legal aid but unable to afford full legal representation.
Conclusion
Access to justice is a complex, evolving challenge in family law. While the profession has made real progress—especially through technology, case management reforms, and resources for self-represented litigants—substantial barriers remain. Moving forward, a shift in mindset is needed
Improving access to justice is not just about making the system cheaper or faster. It’s about making it fairer, more humane, and more responsive to the real needs of the people it serves.
[1] Much of the information within this article was sourced from “Taking a Shot: Access to Justice, Judging and E-Court” by Justice James Williams, prepared for the 16th Family Law Summit.
[2] Julie Mathews & David Wiseman, “Community Justice Help: Advancing Community-Based Access to Justice” (Community Legal Education Ontario, June 2019) at 11.
[3] Generally, ROBERT A. KAGAN, ADVERSARIAL LEGALISM:THE AMERICAN WAY OF LAW (Harvard University Press 2001)
By Caidan Ubell
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