Like many large, complex legacy systems, the family justice system has long been the subject of numerous concerns, reports and recommendations for change. While often the calls speak of the need for drastic change, most often the responses of the family justice system have really been in the nature of family justice reform.

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In the justice system in Canada (and many other countries), this is often referred to as improving “access to justice”, which is a much-used, but largely undefined concept. It can mean anything from improving access to legal aid, approving the use of paralegals, amending Rules of Court to reduce procedural barriers, expanding the use of mediation or other conciliation approaches, and changes that are designed to reduce costs, make the responses more proportional to the issue in dispute and make the system more effective.

While these are all important in helping to make the existing family justice system work better, they are really more about doing what the system is already doing, only better. They are not about shifting the culture, paradigm or mental model, but rather about improving the existing paradigm.

As more people learned about brain science and made the connection to the unintended harm occurring in family justice processes, support grew for the paradigm shift called for in the 2013 reports of the national Action Committee on Access to Justice in Civil and Family Matters (the “Action Committee”). Justice Andrea Moen of the Court of Queen’s Bench became an important champion for system change that would protect children from the effects of toxic stress in unresolved family law matters. As explained in a 2015 paper,

““With the support of the three levels of Courts in Alberta, she approached Alberta Justice, and invited Assistant Deputy Minister Lynn Varty to co-convene an initiative aimed at reforming the family justice system in Alberta. This was done in the context of a one-day Joint Action Forum of leaders in the justice community in Alberta, gathered to consider action on the Action Committee Reports and recommendations.””

- Source: Jehn, Michelle, Jessica Spina, Diana Lowe, and Barb Turner (2015) “Reforming the Family Justice System: Using a Causal Layered Analysis to Develop a Theory of Change”, in Proceedings of Relating Systems Thinking and Design (RSD4) 2016 Symposium, Banff, Canada, September 1-3 2015, Available online: https://openresearch.ocadu.ca/id/eprint/2034/1/Jehn_Reforming_2015.pdf )

As a result of this forum, Reforming the Family Justice System (RFJS) was established in 2013 as a collaboration of organizations and individuals working in the justice sector and beyond in Alberta. It is led by Diana Lowe, QC, a lawyer and justice system reformer who served as Executive Counsel to Associate Chief Justice and later the Chief Justice of the Court of Queen’s Bench of Alberta. Lowe and the core group of RFJS Co-Conveners had many years of experience with the family justice system, and they were passionate about achieving greater impact on the problems they were seeing.

As part of the RFJS goal to better understand the transformational change they sought, they undertook a process called “causal layered analysis” (CLA) sometimes referred to as working through the iceberg process. The CLA process helped people step out of their organizational roles, silos and paradigms so they were in a better position to imagine something completely different. It helped participants to deeply understand how the brain science evidence really supported transformational change. They worked through this process multiple times, with many different groups of collaborators. The outcome was always the same, which really helped the RFJS leaders to have confidence in what we learned through this process.

Facilitators helped the many participants work through four layers of understanding. They drew an iceberg, and the group began first by identifying the litany of issues that are common concerns in the family justice system (which they described as being above the water line). These include things like cost, time to trial, and other “access to justice” issues. The facilitators guided the discussions down below the water to look at patterns in these issues and then deeper to consider how various systems hold people and organizations in these patterns.

Finally, the discussions explored the myths and metaphors in the system, most of which described fighting (gladiators, sharks, sports analogies and war analogies). This really helped everyone to understand how deeply the adversarial nature of the existing system is at the core of holding the problems in place.

After clarifying a consensus description of the current mental model, the participants worked to imagine a “new mental model” that would be different.

The group quickly came to realize that most of what families are dealing with in their family situations – whether family restructuring, child welfare, or family violence – is actually about their social needs, their relationships, parenting needs, and financial needs, and that there may also be a legal element to these. The justice system has always focused on the legal issues and responses. The groups saw that by giving such priority and focus to legal responses, the system was not helping families to deal with their social, relationship, parenting, or financial needs. Indeed, the tools of the legal system, tools for fighting, often made the situation worse for families.

This clarified the need to untangle the social, relationship, parenting, and financial needs from the legal needs and then ensure that families have the skills and support they need to address all of these challenges. This was the important shift shift in thinking, mental models or, as it was called by the RJFS, a paradigm shift.

From this, the RFJS team realized the importance of creating different paths for families, to ensure that they obtain the kinds of skills and supports that they need, outside of the legal adversarial processes that characterize the family justice system. This was much more than making the current system trauma-informed. This would involve transforming the system. This new priority underscored the importance of effectively engaging many different sectors to engage with them and get their assistance in creating these new paths. The justice sector did not have to create all of these supports and skills; they had to shift their focus, help to break down silos and embrace the many resources that already exist.

The work of TFJS became centered on imagining a family justice system where families thrive.

Lowe explained that while the Action Committee called for a paradigm shift, there was not much clarity or guidance from the 2013 report recommendations on how to bring about paradigm shifts or changes in mental models. Lowe and her colleagues became students of transformation, studying works by thought leaders such as Donella Meadows who wrote an article called “Leverage Points” which was later a chapter in her book, Thinking in Systems). Meadows emphasized the importance of understanding, transcending, and changing paradigms. In their 2018 article “The Waters of System Change,” FSG consultants emphasize similar points, but they use the terminology of shifting the mental model.

As RFJS collaborators sought to change the mental model away from legal adversarial processes to family well-being, they concluded that an important leverage point would be to improve the understanding of brain science and Adverse Childhood Experiences (ACEs) and resilience among everyone involved with the family justice system.

The focus on family well-being also required the RFJS team to think about how to create the pathways to the social, relationship, parenting and financial skills and supports that families need. While this was logical in many ways, designing a strategy that broke down silos and engaged with multiple sectors was dauntingly complex. Most of the organizations that could potentially play a valuable role in system transformation would not have the time or bandwidth to take on the big challenges that were being addressed by the strategy. Somehow, their efforts needed to be aligned so they would be part of something bigger and more impactful–not just functioning in their silo. Developing and implementing strategy across multiple sectors and many organizations is a big challenge, and there are far, far more examples of failed efforts to do this than successful ones.

Fortunately, the RFJS coalition was made up of passionately committed people and organizations that wanted to have an impact, and so they began to learn about the most promising techniques and approaches to achieving large-scale transformation. They learned about Collective Impact (CI), including initial articles in the Stanford Social Innovation Review and in the emerging CI practices taught by Tamarack Institute and Mark Cabaj. Cabaj also introduced them to the conceptual framework developed by Frank Geels (Geels, 2004). The Geels framework emphasizes the importance of simultaneous work on shifting the landscape and demonstrating niche innovations in order to apply pressures to change the social, technical, and structural makeup of the system–which Geels refers to as the regime. This page shares more about the Geels framework.

One important element of transformation that the Geels framework emphasized was the need for innovation and learning. This emphasis on innovation is in contrast to the requirements of many funders that coalitions pick their interventions from a list of evidence-based practices that have a solid base of research on their effectiveness. RFJS and their initial funders understood the importance of opening their minds to learning new ways of doing things. By definition, when the vision is for transformational system change, the coalition is working towards something that is new. So both the coalition and funders have to be open to all that entails. This truly means embracing change and being willing to take risks involved with exploring, evaluating, and refining new approaches. While it is important to learn from the research that has been done, it is problematic to cling too tightly to research, as there is not likely to be much in the way of existing practices that can be followed with fidelity. Given that system change is so complex and will take at least several years to accomplish, it is also exceedingly difficult to conduct research on system transformation that would provide the evidence of effectiveness that funders tend to look for.

Bold transformations are sometimes called “moon shots” to bring reference to the ambitious program by the U.S. to put a man on the moon and bring him safely home by the end of the 1960s. What is often ignored in that comparison is that there were no evidence-based practices in the literature for accomplishing that bold goal. Instead, the effort involved breaking a very complicated endeavor down into many components where teams could work in parallel, advancing niche innovations and refining the plans as quickly as they could learn anything that might overcome the obstacles they were encountering. That mindset aligns with the idea of niche innovations in the Geels framework, and the use of the strategy map framework creates a structure around which to organize the most important work on innovation.

It was helpful for the RFJS to have Co-Conveners and a funder, the J.W. McConnell Family Foundation, that valued the “license to innovate.”

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