The time for action

By Susan Goldberg June 2013

Separating families deserve affordable access to legal services.

The time for action Photo of Dr. Julie MacFarlane by Mike Kovaliv.

When Dr. Julie MacFarlane began interviewing self-represented litigants about their experiences in family court, she expected to hear tales about difficulties and inconveniences.

What MacFarlane, a professor at the University of Windsor’s faculty of law, didn’t expect was to be bowled over again and again by stories of separating spouses being forced into self-representation after running out of funds. Worse yet, some of the self-reps (or SRLs) would report being treated poorly by judges and opposing counsel who regarded them as intentionally obstructive. MacFarlane, who also teaches at the University of Notre Dame’s Kroc Institute for International Peace Studies, is heading a national research project on Canada’s rapidly expanding population of SRLs in civil and family matters. Part of her job has consisted of listening to distraught self-reps talk about the fallout and delays of filling in forms incorrectly; the stress of having to prove themselves to a different judge at each appearance; the perils of taking too much time off work to build their case, only to lose their job. On top of it all, there’s the toll on mental and physical health, of being pushed into poverty, of alienating family and friends.

"We still talk about ‘alternative’ dispute resolution, but it shouldn’t be alternative. It should be our first resort."

“People in Family Court are already having their lives fall apart,” she says. And for too many, trying to afford and navigate the court system exacerbates rather than relieves that trauma. “I was doing research interviews, but I really felt as though I did grief counselling for a year.”

Family Court, it would seem, is a ground zero when it comes to access to justice, with fewer and fewer people finding affordable, timely, understandable and meaningful judicial solutions to their problems. Although they comprise 35 per cent of all civil cases, family law cases take up a disproportionate amount of time, with many more events per case, three times as many adjournments and twice as many hearings. With lawyers’ fees out of reach to most families, SRLs now make up the majority — in some areas up to 80 per cent — of litigants in the family justice system, causing delays and presenting huge challenges for trial judges, with no evidence of better outcomes.

Settling the issue

The situation has hardly gone unnoticed, judging by the scores of reports by provincial law societies, bar associations, scholars and social justice agencies. Most recently, a report by the Family Justice Working Committee (FJWC), commissioned by Supreme Court Chief Justice Beverley McLachlan, has called for a radical overhaul of the system. The report includes 31 recommendations that address everything from legal education and reform, a focus on non-adversarial dispute resolution, and funding to judicial reform and simplifying and unifying the court system.

Jacqueline Shaffter

Jacqueline Shaffter, Legal Aid Alberta, Edmonton
Photo credit: Curtis Trent

“There’s an overwhelming number of reports, all full of good ideas,” says Erin Shaw, a Victoria-based lawyer and policy consultant, who drafted the background paper for the FJWC and supported the group in preparing its final report. “So the question is why aren’t we doing these things? There’s a big issue around culture change and resources.”

One of the most necessary cultural shifts, argue stakeholders, is a move away from an adversarial model. “It doesn’t work in family law,” says Jacqueline Shaffter, CEO of Legal Aid Alberta. “We still talk about ‘alternative’ dispute resolution, but it shouldn’t be alternative. It should be our first resort.”

Many provinces and courts have introduced so-called “alternative” or consensual dispute resolution (CDR) initiatives. In Québec, for example, separating couples with children are entitled to several free sessions with a mediator. In her province, says Shaffter, Legal Aid Alberta now automatically recommends mediation before proving clients to go to litigation: approximately 80 per cent of clients who attend mediation reach a partial or full conclusion. British Columbia’s new Family Law Act actively tries to steer couples toward dispute resolution before using the courts. And technology is enabling mediation from a distance by telephone or online, opening up services to more remote and rural clients for whom the time and cost of travelling to access the services can be prohibitive.

"Offering legal services à la carte would hugely improve access to justice."

But more can be done, especially as CDR becomes more complicated without lawyers. “Lots of SRLs talk about how they would like to be able to settle,” says MacFarlane. “But they don't know how." The involvement of a lawyer on the other side can exacerbate the problem. SRLs, she says, need real coaching on how to create an acceptable compromise and a dignified outcome. “Without this skill set, court becomes their only outcome.”

Unified family courts may offer another workable compromise. These single courts — which are available in parts but by no means all of Canada (namely in Alberta, B.C., Québec, much of Ontario, Nova Scotia and the territories) — are authorized to hear both provincial and federal family matters. Specialized judges and staff are trained to take a non-adversarial, problem-solving approach, with the court as a hub in a network of legal, community and social services for families and children. The goal is to expedite the process and reduce costs while minimizing acrimony and providing real solutions.

Robert Harvie, QC

Robert Harvie, QC, Huckvale Wilde Harvie MacLennan LLP, Lethbridge
Photo credit: Mark Orenstein

“We work on a case management system: one judge for every family […] from the beginning right to the very end unless there is a trial,” says Justice Stanley Sherr, who sits in the North Toronto court. About half of his clients, he says, have lawyers, while another 20 to 30 per cent are represented at least partially by duty counsel. Judges in the Ontario Court of Justice, says Sherr, develop relationships with and are accountable to the families they serve: “We set goals, try to give the family the tools it needs to accomplish those goals and move forward. If I don’t solve the case or the underlying issues so that they can move forward and get resolved, it’s just going to keep coming back to me. Very, very few cases go to trial.”

Unbundling services

For the cases that do go to trial, another huge roadblock to justice is the “all or nothing” retainer approach most family lawyers take. “Almost everyone I have interviewed has tried to find a lawyer who will just look at the forms, or just draft a pleading, or who will just come to court for one particular hearing because they’re feeling really anxious,” says MacFarlane. “And they are constantly amazed that they can’t get that.”

"Unified family courts may offer another workable compromise."

Offering legal services à la carte, says family law practitioner Robert Harvie, QC, would hugely improve access to justice, particularly for that large “grey area” of clients who don’t qualify for legal aid but can’t afford to spend tens of thousands of dollars on lawyers’ fees, either.

Lawyers, however, see such “limited scope retainers” as higher risk. “If they can’t control all aspects of the case, they worry about professional liability and responsibility,” says Harvie, a partner at Huckvale Wilde Harvie MacLennan LLP in Lethbridge, Alta. Further, he notes, because they already have high caseloads, family lawyers have little incentive to change the way they practise and provide legal scope retainers. Like MacFarlane, he argues strongly for changes to rules of professional conduct to ease lawyerly fears and broaden the scope of unbundled legal services, as well as who can provide them to family law clients. In particular, says MacFarlane, we need to re-examine and expand the role of paralegals.

"There will always be that small subset of clients who absolutely need the services of a full-fledged lawyer to handle an entire case."

There will always be that small subset of clients who absolutely need the services of a full-fledged lawyer to handle an entire case. Those clients, notes Shaw, need to be identified early, through an effective triage system that gets “the right resources to the right family, when they need it.” Legal aid funding needs to be expanded, she says, but its definition also broadened to include the interdisciplinary services transitioning families need: mediation, parenting and debt counselling, someone to help fill out forms, guides to social services, and more.

In the end, however, these piecemeal solutions — helpful as they are — won’t resolve overarching issues of access to justice without the “radical overhaul” espoused by so many. But just how radical an overhaul is required to create a system that provides those affordable, timely, understandable and meaningful judicial solutions for families in transition? And can the justice system as we know it sustain such an overhaul before it turns into something else? Maybe, muses MacFarlane, the time has come to rethink entirely the conundrum of funding a public system to enable private dispute resolution: “Maybe we need to start to think about other, extra-legal, community-based alternatives to resolve these issues.”

Susan Goldberg is a journalist based in Thunder Bay, On.
Filed Under:
Julie 1/21/2014 11:03:59 AM

The problem with this mode of 'service' is that it will leave clients with even LESS means of holding bad lawyers providing incompetent services, accountable.

This is already part and parcel of the problem and pattern of abuse that lawyers drag litigants through court and then dump them with NO resolution and force them to represent themselves after the lawyer damages their case.

Buyer beware.

Allison Armstrong 1/23/2014 6:59:51 PM

I was very pleased to see this article. I have been practicing since 1995 and before regulation many Paralegals were offering services in Family Law such as uncontested divorce as well as other areas such as Wills, Powers of Attorney and simple incorporations.

When the Industry was regulated these practice areas were not included in our scope of practice. we have advocated ever since to allow us a role in these areas and have often met strong opposition.

We were granted the role of taking criminal Law matters provided that the Crown is proceeding summarily and asking for 6 months jail or less. However we were denied the ability to have our clients apply for a Legal Aid certificate if they choose to hire a Paralegal. It is not just family law that is having access to justice issues for the public.

I for one as a Licensed Paralegal strongly embrace this idea of allowing us a role in the Family Courts.

Without addressing this problem, the public will hire unauthorized practitioners who are not licensed and do not carry errors and omissions insurance. This is rather ironic considering that it was that exact scenario that was the argument for regulating us in the first place.

This current situation is not protecting the public and has been allowed to exist for years, since 2008 when Paralegals were regulated.

Lawyers and Paralegals can and should work together to enhance access to justice. We have, I believe demonstrated that we have in fact worked together in the past and we can work in these areas as well.

Allison Armstrong
Legal Paper Chasers
Brantford, Ontario

Shawn E. Jordan 12/25/2014 8:16:42 PM

Courts are not supposed to help/hinder families. Family Law should occur at the dinner table, and problems solved on the spot or after dessert. Grandma and or grandpa is supposed to be judge.

Trying to fit family disputes into a court house is like trying to fit a square peg into a round hole. It's not something that fits properly - or at all.

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