The obvious alternative to family lawyers: Doing without them?

According to 2017 statistics, Canada had approximately 98,800 practicing members in various provincial and territorial law societies. However, the percentage of that pool serving the underprivileged is negligible. For instance, in Ontario (39,279 practicing members), only 5,000  lawyers accept Legal Aid cases – that’s just shy of 13% of the province's lawyers. In Alberta (9,776), only about 8% of lawyers (roughly 800) in the province support the province's population seeking Legal Aid.    


The result? More Canadians find themselves forced to go to family court, or deal with family law issues, without the “luxury” of legal representation.


Understanding the Root Cause 


At a 2016 conference organized by the Federation of Law Societies of Canada, participants of a survey disclosed that “…another party self-represented for most or all of the life of the file in 20.4% of their cases in the past year”. Several prominent studies, in previous years, on the issue of Self Represented Litigants (SRLs) had also highlighted the issue arising from self-litigation. These include The Family Justice Working Group of the Action Committee on Access to Justice in Civil and Family Matters (2013) and the report of the National Self-represented Litigants Project (Macfarlane, 2013).


These reports, writ large, highlight the need for urgent and comprehensive reforms to the Canadian justice system for its long-term sustainability. However, the short and mid-term implications, for families seeking assistance of a family lawyer in divorce, separation or arbitration over child support, are huge.


The fact is that, across Canada, separations, divorces, adoptions and child custody are extremely expensive legal battles to fight. Is Canada’s family law system complex and challenging to navigate? The answer is, probably yes. However, that complexity only sheds light on part of the problem that’s causing more Canadians that ever to self-litigate family law disputes. There are other underlying issues, specifically related to the high cost of hiring a family law practitioner, that are to blame.


Lawyers, especially those practicing family law, are quick to blame these high costs on a myriad of (justifiable!) reasons:

  • The cost of renting or owning a law practice is extremely high
  • Bar fees and other professional membership dues are too steep
  • Insurance, including for negligence and malpractice, cost a lot in Canada
  • Compliance is an ongoing cost that continues to rise
  • Other costs, including technology, financial and operational record-keeping and staffing add up over time

And, because they incur higher costs of doing business, professionals in the family law business often justify charging more from their clients. The problem with that scenario is that most Canadians, who find themselves in need of legal assistance on family matters, can’t afford to pay those high fees. And that leaves them to look for state help.


And there too, lies yet another challenge for litigants who must turn to the Canadian family court system for redressal on family law issues. Legal aid is a definite solution to the problem – but not for the vast majority of divorcing or separating spouses. These litigants either can’t afford to pay the high fees resulting from hiring a lawyer, or they don’t qualify for legal aid.


For instance, spouses of a family of 2, looking to seek legal aid in Ontario, can only qualify if their family income is below 32,131. On average, therefore, that leaves each spouse earning just above the federal personal tax exemption limit – which is around $12,200 – to qualify for such assistance. So, how many families would qualify for state legal assistance in these circumstances?


An Unworkable Alternate Model


Typically, the longer the lawyer interacts with dueling parties, the more income-advantageous it is for them (the lawyers). Whether the relationship is for litigation or arbitration, lawyers bill by the hour, so it’s in their best interest to keep the parties at the bargaining table indefinitely. However, since Canadians with limited means can’t afford protracted legal help, they (the client litigants) end up holding the short end of the stick.


So, what other alternative is there to make family law more affordable and accessible to all Canadians, especially those among the most underprivileged of our society? Well, the Canadian Research Institute for Law and The Family seem to have hit upon the answer: It’s called “Unbundled Legal Services”.


At it’s simplest, “unbundling” (also called a limited retainer agreement) works like a menu at a restaurant. Canadians looking to separate, divorce or settle other family issues, contact a family lawyer and pick a service item from a menu – Appeals - $A per hour; Child Support cases - $B/hour; Separation & Divorce - $X/hour.


Lawyers contend that this menu-based dispensation of justice is the best alternate to address the growing trend of self-litigation. They believe that this “pay per use” formula makes family law affordable for litigants, and more equitable (cost effective) for lawyers. However, there are more practical aspects that critics of this model point to.


Firstly, lower-income families still won’t have visibility into how much each proceeding will cost them. Putting a cap to the number of chargeable hours, therefore, might be a good starting point for this “unbundling” to work.


More importantly though, critics point to the concern that a menu-based system may end up providing litigants with "patch work" advice, and even potentially conflicting advice, from multiple family lawyers that sell other aspects of the "bundle". Lawyer B, that represents a family in a Child Support case, might not be familiar with the nuances of their overarching Separation and Divorce proceedings, that another law firm (Firm A) may have worked out. 


Other Options?


So, what other options are there for seeking remedy under Ontario’s family law? Truth be told, until the provinces’ family court system undergoes an entire overhaul, as many in the legal profession and academia have called for, there are no substitutes to working with family law practitioners. However, the status quo may be changing. Canada-wide research, on whether working with family law professionals is germane to case outcomes, indicates some interesting trends:

  • Almost 45% of judges and lawyers, from most jurisdictions of the country, believe that litigants without counsel are more likely to be reasonable in the approach they choose to their legal challenges – i.e. self-litigants were savvy enough to make their case without legal assistance!
  • When it comes to case outcomes on support issues and issues around division of property, 20% 13% respectively, of judges and lawyers across Canada, believed that having a legal professional representing a litigant didn’t alter the outcome – i.e. lawyers made no difference in these cases! 

Clearly, there’s a growing move for Canadians to do without legal assistance – which may lead to justice distorted or even justice denied. If a  family lawyer truly wants to make a difference, he/she should reduce rates or offer a significant part of their services through "fixed fee" relationships. That’s the ultimate compromise that’s best for the broader good of society.