July 31st, 2017
There is a great deal of media coverage at the moment about the crisis in Family Court. Access to justice is a major concern for individuals who find themselves faced with a family dispute of some kind, and many people have nowhere to turn but the courts.
There has been attention given to the recommendations in Justice Bonkalo's Family Legal Services Review Report, released in March of this year, which include having paralegals possibly provide legal services in specific areas of family law. Many debates are ongoing about whether that recommendation would indeed increase the ability of family law litigants to obtain the help they need in court. What is not disputed is the prevalence of litigants who find themselves in Family Court without representation by a lawyer. Legal Aid funding is difficult to obtain, and many people who are rejected for Legal Aid find themselves unable to afford a family law lawyer, landing them in the dreaded position of having to fight for themselves in a courtroom.
It is worth noting that family law lawyers must be conversant with about 39 statutes and regulations, including both federal and provincial legislation. Family law lawyers also deal with common law principles and equitable claims including unjust enrichment, resulting trust and constructive trust. Family law involves complicated interactions with a diverse range of other areas of the law, such as wills, trusts, estates, tax, employment, corporate and bankruptcy law. It is an area that intersects with vast and complicated legal issues, and the issues in dispute are invariably significant to the parties. Children, property and financial security are at stake, sometimes with child protection and domestic violence dimensions. Even family disputes that may appear “simple” often become very complicated, and the court system is challenging to navigate.
Having spent over 15 years as a family law lawyer, with countless hours spent at court or dealing with family law litigation, I have my own proposals for what would increase access to justice in family law in Ontario:
- All courts should convert to the Unified Family Court system province-wide. In many parts of Ontario, including Toronto, family law jurisdiction is split between two courts, namely, the Superior Court of Justice and the Ontario Court of Justice. This creates inefficiency and confusion. All separating families, regardless of being married or common-law or never having lived together, should resolve their disputes in one forum, with access to judges who specialize in family law, court-annexed mediation, coaching and counselling services available on site. This should be the primary, and paramount, focus of family law reform and of all improvements to access to family justice.
- Lawyers should continue, and be encouraged, to provide unbundled legal services. While many lawyers are fearful of providing unbundled legal services, meaning services that are limited in scope such as appearing at one specific court appearance, or assisting with court documents, while not being the "solicitor of record", because of potential liability issues, the benefits to litigants outweighs the risks. Lawyers prepare "limited scope retainers" that set out their role for their clients. In order to increase lawyers' willingness to provide unbundled legal services, there should be amendments to the Rules of Professional Conduct, and if necessary, to the Law Society Act, to ensure that provision of such services does not create undue liability or risks for lawyers. Judges should be supportive of lawyers who act in such a role, and should encourage litigants to explore this option. The availability of such services reduces legal fees and yet provides invaluable legal assistance to people who may not otherwise be able to afford it. This should be known by the public and recognized widely. Educating the public about this option for representation is essential.
- Law students should continue to play a vital role in the family justice system. There are many innovative ways for students to gain experience in court while assisting family law litigants who are in need. The drafting skills of law students should be accessed, as well as the assistance of these students who are developing a keen interest in the area of family law. Family litigants should be advised to consider contacting the legal clinics at the local law school. Law students are permitted to appear in court for limited appearances. Students may be found on-site at Family Court on most days, and there are projects underway to allow law students with an opportunity to provide legal assistance to family litigants with the supervision of a lawyer.
- There should be early judicial intervention in Family Court proceedings. The Advocates' Society has consistently suggested that a triage system whereby family litigants have access to a judge very quickly after commencement of a court proceeding, and on an ongoing basis, to streamline the case and reduce some of the conflict inherent in family law proceedings. There is support by several associations for what would essentially be a "judicial triage" pilot project.
- The Dispute Resolution Officer (DRO) program should be expanded. Dispute Resolution Officers are lawyers with at least 10 years of experience in family law who receive a judicial appointment to promote early resolution of court proceedings. Currently, Dispute Resolution Officers conduct early conferences in variation proceedings. My suggestion is to continue to expand the role of the DRO to conferences in more proceedings and not to restrict their role to conferences of variation proceedings. These individuals are highly knowledgeable and are in a position to intervene early to resolve or narrow the issues in cases. The DRO program should be expanded to all jurisdictions as part of a province-wide Unified Family Court.
- More lawyers should provide pro bono services, particularly with respect to Crown wardship and appeals of "no access" orders. The Advocates' Society is now working with the Pro Bono Law Ontario to expand the Appeals Assistance Project at the Court of Appeal for Ontario to provide more pro bono representation and assistance to parties in a wider range of family law appeals and motions.
- Legal coaching by lawyers should be promoted. This is a form of assistance to litigants without representation by providing assistance with their court case without being in the courtroom. Such assistance would be invaluable for self-represented litigants to conduct their own motions or trials without having to pay the enormous legal fees associated lengthy court appearances. While this idea is in its infancy, it makes sense to encourage litigants who otherwise have no knowledge of how to run their court case. Often judges are left with the role of being coaches to self-represented parties and this is far from ideal.
- There should be more “virtual” legal clinics. A clinic exists to provide remote communities with family law advice from skilled lawyers through online face-to-face meetings via Skype. Such a model for provision of affordable legal services using available technology should be seriously explored and expanded. The creative use of technology to increase accessibility to family law justice should be a focus for future development.
- Paralegals should provide more services in collaboration with lawyers, Legal Aid Ontario, Family Law Information Centres at courthouses and family court counter staff. Paralegals have a role in increasing access to family justice, provided that there is supervision by a lawyer. The role of the paralegal, whose hourly rates are often similar to junior lawyers, should be to assist in the positive momentum towards increased access to justice that currently exists in Family Court. Their role should not create confusion or an increased backlog of mismanaged cases. The unsupervised presence of paralegals in Family Court is not the answer, in my opinion.
- Mediation should continue to be widely available at courts, at either no cost to the parties or a sliding scale based on their incomes. This will serve to divert a large number of cases from the court system. Family law lawyers should offer private mediation services. The on-site mediation at courts should continue to be expanded, supported and promoted. Virtual Mediation Centres using Skype or other online services should be established to provide mediation to those in remote locations.
- As family law lawyers, we have not just an obligation, but a responsibility, to promote out-of-court dispute resolution whenever possible. Mediation, collaborative family law and arbitration are to be considered, canvassed and encouraged with our clients. Such Alternative Dispute Resolution (ADR) techniques for family law cases should not just be the "alternative" to court. They should be the first consideration as the most "appropriate" dispute resolution options available. Family law lawyers are, for the most part, specialists in their field, with a broad knowledge of intersecting areas of the law or connections to lawyers with such knowledge. It is our job to promote resolution, and not unnecessarily exacerbate a dispute through the courts. If all family law lawyers were encouraged to think and behave accordingly, and had the ability to instill the same thinking in their clients, the current crisis in Family Court would be lessened, and only the matters that absolutely have to be in court would be there.
Family law and its endless disputes affect almost everyone, indirectly or directly, and our court system should reflect positively on us as a society through its fairness and accessibility. Members of the legal community should consider this article a call to action. We're all responsible for changing our collective mentality from warriors and gladiators to peacemakers, facilitators and educators. The survival of our family legal system depends on it.