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More things we can do if we’re serious about family law self-reps | Joel Miller

Friday, August 06, 2021 @ 2:02 PM | By Joel Miller


Joel Miller %>
Joel Miller
This series has looked at concepts economists and social scientists have discussed that the rest of the world has embraced and that we could adopt to bring our family justice system into the 21st century, such as: “complementary innovation,” “rational boundaries” and “an acceptability threshold” for cost and quality. We’ve seen that because family law matters are on a continuum from “complex” to “less complex” rules that work for cases at one end don’t work for those at the other.

And we’ve discussed Ontario’s Binding Judicial Dispute Resolution, a pilot project that creates a “streamlined way to reach a final resolution of less complex cases” in which the judge may allow evidence “regardless of the formal rules of evidence.”

Binding JDR is conceptually letting the camel’s nose into our tent. If we can rethink how judges and courts can deliver services for appropriate cases “regardless of the formal rules of evidence,” what else can we rethink to enhance the objective of creating a meaningful family justice system?

The previous article discussed some things we could do if we wanted to expand the reach of the family justice system. Here are some more.

McKenzie Friends

Courts in England and Wales, and elsewhere in the common law world, allow McKenzie Friends — non-lawyers — to sit at the counsel table and help self-reps. Since cuts to legal aid, MFs have become ubiquitous in all levels of family court. They provide moral support, take notes, help with case papers, and quietly give advice on any aspect of the conduct of the case. They can’t act as an agent for the proceedings, manage the case outside of court, address the court, or examine witnesses.

In our system, which values proof over truth, we insist that a litigant can only get help in their case if they hire one of us. And if they can’t, they must hope for the best in a proceeding in which they don’t know the rules and in which they have no experience. What’s the fear or harm in allowing a social worker, or immigrant counsellor, who had been working with the litigant, or a family member or friend with better language and presentation skills, help a litigant in court?

There’s no need to invent the wheel here. There’s a five-page U.K. “Practice Guidance: McKenzie Friends (Civil and Family Courts)” that sets out what’s involved to become a MF and what they can and can’t do. We could simply adopt that with minor amendments, as we adapted the Informal Domestic Relations Trial for our Binding JDR.

And if we were serious, we could go one step further by giving the right of audience in specific circumstances to someone with more comfort in dealing with authority figures and public speaking, and with better language facility than a nervous or scared self-rep. We could require that a prospective MF take an online course or attend a session at the local court office before being allowed to appear. They’d do better than a self-rep without these non-legal skills. How is that worse than denying the self-rep this help?

What are those opposed to this worried about? The MF is only used by someone who can’t afford a lawyer and having a better informed/assisted self-rep helps us all. Just as Binding JDR has acknowledged the value of different rules for different types of family law cases, let’s now acknowledge the value of different rules for different types of family law litigants.

Packaging Rules and Forms

We have 42 Family Law Rules (52 if we count the “.1s”, etc.) plus countless sub-rules. These give rise to 136 Family Law Forms published numerically. Let’s publish a companion set of Rules and Forms arranged topically, for applicant or respondent. This would give a self-rep all the Forms and Rules needed to begin or respond to any proceeding in one place for easy reference.

What part of bringing confidence in the family justice system is enhanced by keeping which Rules and Forms are needed for what step a mystery to anyone in our court system who doesn’t hire one of us? How are we serving family litigants when we tell a self-rep who has taken a day off work to file their material that they need to return with one more form?

Most jurisdictions around North America aren’t as lucky as we are to have the wonderful, interactive, Steps in a Family Law Case from CLEO (Community Legal Education Ontario). But why must this be something people need to stumble upon? Why can’t we publish online, in a button beside the sequential list of Forms, the Topical list with the corresponding Rules and Forms? If this hurts no one but helps lots, why not?

Changing hours for offices and courts

Keeping court hours to suit lawyers disadvantages self-reps who need to take time off work to file their papers. Why can’t there by extended office hours, or a kiosk available in the lobby of court houses, or designated offices open from 4:00 p.m. - 12:00 a.m., and on specific times on weekends?

And, horror of horrors, what’s wrong with scheduling cases for the hours of 6:00 p.m. - 10:00 p.m.? The older Toronto lawyers amongst us remember waiting at 145 Queen Street until or after 11:00 p.m. for case conferences to be finished. We’d often been there since morning or afternoon and couldn’t leave for dinner or to arrange day care. But night courts work for other matters, why not for family law?

Acting for both parties in straightforward agreements

Binding JDR shows we can resolve “less complex” matters using relaxed rules. Why can’t we create relaxed rules for “less complex” agreements? I get the concept of independent legal advice, but why can’t there be approved retainers that make it clear that in straightforward cases, one lawyer can be hired by both parties who’s obliged to point out the advantages and disadvantages of every option, whether raised by the parties or not? We’re lawyers, for goodness’ sake, and can be trusted to tell clients that this isn’t, or is no longer, appropriate for them.

Collaborative lawyers already have a protocol for this. Not every separation requires two adversaries to negotiate something the parties are clear about so long as they’re informed of the consequences. Clients ask for this. We can do this. We only have to convince our insurer that we can do it safely.

Rethinking our Rules of Professional Conduct

Now that we have Binding JDR, which admits that family law matters stretch along a continuum and that the rules needed for the complex cases aren’t needed for the “less complex,” we should re-examine our Rules of Professional Conduct in the same light.

Things we need to do for the complex case to be “competent” unnecessarily raises the cost of minimum service for the less complex case to a level beyond the “acceptability threshold” for self-reps. We create self-reps and then penalize them for not hiring us. Now that we’ve accepted that we don’t need the “formal rules of evidence” in appropriate cases, it’s time to begin doing the same for the “formal rules” of professional conduct in appropriate cases.

We’re done

That’s it for this series. As the world of commerce, human nature, LEGO and Binding JDR shows us, there’s more than one way to have a judge-centric system for resolving family law matters without destroying the existing system. If we want, we can open up and broaden the reach of our family justice system so it’s more meaningful, trustworthy, and valuable for litigants who can’t afford lawyers. Why don’t we?

Read part one in this series: What LEGO can teach family law about dealing with self-reps; part two: What economists can teach family law about dealing with self-reps; part three: The ‘Brumagem screwdriver’ and family law self-reps; part four: Things we can do if we’re serious about self-reps.

Joel Miller is a senior family law lawyer and dispute resolution officer for the Superior Court of Ontario. After several years in private practice he founded The Family Law Coach, a virtual law office providing unbundled services and coaching. Contact him at Joelmiller75@outlook.com.

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