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Family law bears brunt of access to justice burden

Tuesday, March 05, 2019 @ 11:58 AM | By Steven Benmor


Steven Benmor %>
Steven Benmor
Family law is the one area of law that affects the most number of Canadians. The reality is that roughly one-half of all marriages and common law relationships result in separation and divorce.

The breakup of a family is both a social and legal issue. For its social implications, spouses have the assistance of family, friends and therapists. For its legal implications, spouses need the help of lawyers. In Canada, education, health care, police services and even waste removal are all provided freely and equally to all Canadians.

But unlike these essential services which are funded by the government, legal services are privatized. That means that the only way a spouse facing a divorce can receive the help of a lawyer is by paying for that service. This would not be such a problem if the cost of legal services in Canada were affordable.

However, at the typical lawyer’s hourly rate of $300 per hour, the average person would have to work 10 to 20 hours to be able to afford one hour of a lawyer’s help. For a divorce case that may take 20 hours to complete, the client would have to work between 25 to 50 days to pay for a lawyer.

At this cost/benefit ratio, most Canadians go it alone and, by doing so, harm themselves by entering into poor divorce settlements and obtaining adverse outcomes in divorce court.

Although this occurs in other areas of law such as criminal law, it is most problematic in family law, where the population of divorcees and the frequency of divorce are the highest.

Wrongfully terminated employees and victims of personal injuries from motor vehicle accidents (MVAs) and other torts often have access to lawyers on contingency fee arrangements.

But this is not available to divorcing spouses. For the newly separated spouse, legal advice and representation by a divorce lawyer is unaffordable and effectively unavailable. Those who earn an income less than $20,000 per year may be able to receive a free lawyer from the provincial legal aid plan. Those who earn an income over $200,000 per year are financially able to pay a lawyer. But for the vast majority of Canadians whose incomes range from $20,000 to $200,000 per year, they are forced to forgo the much-needed help of a lawyer because they simply cannot afford to do so.

This is the heart of the access to justice problem in Canada.

Day in and day out, courts throughout Canada list cases to be heard each day by its judges. These dockets list the names of the parties and the names of their lawyers right beside them.

But what is not well known is that the box next to the name of the divorcing spouse is often marked “UNREPRESENTED.” That is because they cannot afford their own lawyer and are handling their case on their own.

The number of divorcing Canadians who do not have their case settled in divorce court is far greater than those in the court system. That means there are plenty of more people going through divorce than just those in court and who are likely doing so without the help of lawyers. These people are facing the worst time in their lives and need objective, expert and caring advice from a divorce lawyer to protect their rights to custody of their children, domestic violence, the sale of their home, the division of their pension and their future obligation or pay (or right to collect) support. Doing so without a lawyer is confusing, dangerous and tragic.

For years, judges, lawyers, mediators, elected officials and government policy advisers have explored many solutions to this chronic problem.

Some solutions have been identified, adopted and even enacted. For example, the rules governing court cases in Ontario were rewritten to make them reader-friendly to the general public.

The Ontario family court forms were reformatted to make them user-friendly to those without lawyers. The provincial governments throughout Canada offer portals providing free legal information for divorcing couples. All Ontario courts offer a Family Law Information Centre providing free information, court forms and referrals to spouses going through divorce without a lawyer.

In Ontario, family mediation is subsidized by the provincial government. Courtroom mediators are available to help spouses who are in court that day settle their case free of charge. For those that are not in court, subsidized mediation services are available at rates commensurate with their incomes and therefore affordable. In Ontario, supervised access centres serve families who require professional supervision for children of parents in situations of risk, with mental health concerns, addictions or domestic violence.

Despite all of these tremendous services being provided free of charge or at affordable rates, the very right to legal advice and representation for divorce is largely denied.

Access to justice is a serious, chronic and unsolved problem in Canada. Canadians have access to education, medical care, housing, police protection and even waste removal. But Canadians do not have access to legal help in case of separation or divorce. For the most part, those families are forced to fend for themselves. And that is exactly what they do. Those families resolve their divorce in a manner that is uninformed, unfair and uncertain for the children, parents and family.

The current legal system has made family justice inaccessible.

This is the real access to justice problem in Canada.

Steven Benmor of Benmor Family Law Group is certified as a specialist in family law and is the founding chair of the elder law section of the Ontario Bar Association. E-mail him at steve@benmor.com

Photo credit / Guzaliia Filimonova ISTOCKPHOTO.COM
 
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