In the face of an access-to-justice crisis, the family law system is exploring new paths forward
The massive increase in self-represented parties in family law litigation is forcing justice stakeholders to search for new solutions.
In the current environment, precarity is a theme even for those who can afford a lawyer. Market volatility, high-interest rates, and the pandemic experience have many of Diana Isaac’s family-law clients looking to avoid court.
“Because of the financial situation people find themselves in, they’re leaning towards mediation and arbitration,” says Isaac, a partner with Shulman & Partners LLP in Toronto. “It’s expeditious and more cost-effective.”
“Provided their matter is appropriate, this is definitely becoming a more prominent option.”
But professionals working in the justice system estimate that between 50 and 80 percent of litigants appearing in family-law court are self-represented, according to the Government of Canada. And that number is consistently higher in big cities. The National Self-Represented Litigant Project indicates that nearly 80 percent of family-law litigants file their cases with the court unrepresented.
The number of self-reps has been increasing for years, says Russell Alexander, founder of Russell Alexander Family Lawyers. He says some parties may begin their dispute with a lawyer but run out of money and must continue on their own.
“It is really hard on the system,” says Alexander. “It slows the system down. It’s hard on judges, and it’s hard on court staff.”
Isaac has been practising family law since 2010 and says self-reps “have always been there. It takes longer to reach a settlement, of course,” she says. “Courts are doing a great job at trying to be helpful in getting that finality for people that they need.”
It is challenging to deal with an opposing party that often does not know the rules, practice directions, or how to file the rights forms, says Alexander.
“They seem to be getting away with more.” If it were a lawyer not filing the correct form, following the filing deadline, practice direction, or family law rules, the judge would typically order costs because that hearing or conference is a waste, he says.
“But when it’s a self-rep, I’m seeing, more and more, that judges are letting them off the hook. They’re either not ordering costs, or they’re reserving on costs until a later date.”
“I understand why. But I think it’s a little bit unfair to the client who’s paying their lawyer to get the forms filed properly and on time. That client now has to get a new court date because the self-rep can’t comply with the rules.”
Ontario’s Superior Court has been testing a new binding judicial dispute resolution (JDR) process for the last two years. The process balances a “rough and ready” approach against the goal of achieving a more efficient and less expensive system, says Sarah Boulby, a family lawyer and partner at Boulby Weinberg LLP in Toronto.
In M.D. v. C.S., 2022 ONSC 6671, Justice Lene Madsen presented an overview of the procedure. The JDR process is voluntary, both sides must consent, and the judge must agree that the case is appropriate. Initially, the process is intended for simple cases involving only a few issues where credibility is not a significant concern. The process lends itself to “parenting arrangements, select child support issues, or select property issues,” said Madsen. Parties agree to maintain up-to-date financial disclosures, having their matter decided without a trial and in an expedited manner and waiving “the strict application of the rules of evidence.”
“That’s the trade-off,” says Boulby. “This is going to be a little bit rough justice. But it allows the simpler family cases to be dealt with expeditiously and without forcing a couple who may not have a lot of means to go through the same very complicated, lengthy hearings, requiring a lot of specialist knowledge, that we use for big commercial disputes.”
Parties to a JDR serve and file brief affidavits. In the example cited by Madsen, between 90 minutes and two hours are allocated for negotiation, during which the judge “helps the parties identify their interests, consider options, and reach resolution.” If necessary, the same time is allotted for the adjudication. “The goal is that whether through settlement or a decision, parties have an ‘answer’ to their issues by the end of the day or shortly thereafter,” the judge said.
Last December, the Law Society of Ontario approved a family legal services provider (FLSP) license to allow paralegals to offer a narrow range of family law services to enhance access to justice in family law. Their scope includes process navigation, completing the application for uncontested divorces, arguing and completing the paperwork in court motions to change child support where income can be determined by an employer-issued T4 and line-150 income, and responding to proceedings to enforce support payments.
Just before the license was voted on and approved at Convocation, one of the motion’s sponsors, bencher Cathy Corsetti, said that the goal of the license was to “enhance access to legal services for the many family law litigants who do not have legal representation when they need it.” She said she was not asking her fellow benchers to support the measure because it represented all that paralegals were capable of in family law or that it would lead to “great improvements” in access to justice. But Corsetti added that “it’s a start.” She said she was confident the license would “expand over time.”
“If you take a close look at the services they’re permitting family law service providers to do, these are not the cases that are backing up the court system,” says Alexander. “In my view, though maybe well-intentioned, I think the change is more cosmetic than substantive. It’s not going to improve the justice system.”
Alexander says any senior family lawyer will know “there’s no such thing as a simple divorce.” There are always complex issues that need ironing out, whether an improperly valued pension, a notional disposition cost, or a tax issue. These issues are commonly overlooked, even by some junior lawyers.
The license could also result in more work for family lawyers, adds Alexander. “Because when there’s a mess on aisle four, lawyers are going to get called in to clean it up and fix the mistakes that were made by the non-trained lawyers.”
One opportunity to improve access to justice lies with the utilization of technology, says Isaac. Remote hearings allow people in remote areas to access a wide range of lawyers who are not available if they must travel long distances to attend court. “That really assists and bolsters access to justice, in my opinion,” she says.
“Remote court hearings are the secret sauce that’s going to help us fix our broken court system,” says Alexander.
After the pandemic forced the 200-year-old paper-based system to pivot to digital filing and use Zoom for case conferences and court hearings, the courts now want to return to in-person hearings. Alexander suggests using courthouses or other public facilities, such as public libraries, as justice hubs for those without a reliable internet connection and allowing family law litigants to stretch their legal budget further with remote hearings.
“The justice system is not about judges,” says Boulby. “The justice system is about families and the public, and we need to do a better job at delivering service to these people. By looking at remote court hearings and by promoting collaborative practice and mediation, we have a chance to make the justice system more efficient for the people who absolutely have to go there.”
Family-law tasks approved for paralegals
- Process navigation
- Completing divorce application if uncontested
- Completing paperwork for child-support change where income is determined
- Arguing motions to change child support in court where income is determined
- Responding to proceedings to enforce support payments