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Speaker's Corner: A two-tier system to serve the people

All systems of justice have underlying principles. They may be to serve the leader, the state, the administrators or the people.

Whatever the purpose, the structure supporting it needs to be built to serve that purpose, and if it doesn’t, it’s a failure.

Our family law system is a failure.

The Law Society Act, R.S.O. 1990, c. L.8, s. 4.2 (2) gives the Law Society the privilege of self-governance in exchange for it accepting certain duties.

One is the “duty to act so as to facilitate access to justice for the people of Ontario.”

But the truth is, we don’t have access to justice for most of the people in Ontario’s family courts because access to services is too expensive.

Studies such as the 2016 Family Legal Services Review by Justice Annemarie Bonkalo and the 2016 Ryerson Family Reform Community Collaboration show that between 57 and 80 per cent of people in our family courts are representing themselves.

The main reason they give is the cost of legal services.

If our family court system fails the clear majority of users, we should change it. But changing the system is seen as a risk, and the family law bar is risk averse. So we lawyers are comfortable delivering high-quality legal services to the shrinking pool of those who can afford it, while ignoring the growing pool of those who cannot.

We choose to ignore the fact that we have a two-tier system of family law justice in Ontario — one for the rich and one for the rest.

A four-year study of Ontario Superior Court cases showed that where one litigant had a lawyer and the other didn’t, the self-represented person lost more than five out of every six times.

It’s not that cases presented by self-represented people have less merit. It’s that they have less effective presentations.

If the chief indicator of success for a self-represented person is whether the other side has a lawyer, that isn’t justice.

One reason legal services are so expensive for the clear majority of litigants in the family court system is because of all of the things lawyers are required to do, even if the client doesn’t want or can’t afford them to be done.

Our professional CLE courses tell us how to do what we do better and how to avoid potential claims for falling below the standard of care.

But it’s not good enough if only the rich can afford services meeting that quality.

We’ve been so focused on the need for excellence that we’ve neglected the need for accessibility.

We’ve created a vast service desert in which we control the oasis and charge what we want to those who want a drink.

We say our oasis is accessible to all, but that doesn’t help the thirsty who can’t afford the fee.

What we need is a two-tier system built to serve the people and provide affordable access to services. This would be a system with two standards of procedure, rules and evidentiary practice, a Full Rules Court and a Relaxed Rules Court.

Every case with two self-represented people would automatically be assigned to the RRC.

Rules, procedures and forms would be simplified and written from the perspective of a one-time user of the court system.

The applicable law would be as set in the RRC Procedural, and case law or legislation wouldn’t be cited.

The presumption would be that the issues to be decided don’t involve facts or law of such complexity that the FRC rules should apply.

The judges would be interactive — allowed to ask questions, raise issues and invite the parties to engage with the court in a joint, informally conducted exercise designed to resolve the matter.

The judge would be able to use mediation techniques without polluting the role of final arbiter if no resolution is reached.

Either party could move to be in the FRC if they preferred, and the request would be considered in the context of the availability of resources to both parties.

RRC judges would need specialized training. Submissions and evidence would be limited.

In cases with one represented and one self­represented party, the first attendance would be to determine if the case should be moved to the RRC, unless both parties agreed.

And either of two represented parties could also move to be in the RRC.

Lawyers and non-lawyers could represent parties in the RRC, and extensive use of unbundled services would be encouraged.

The obligations of lawyers in the RRC would be specified, but less rigorous than those in current, fully traditional courts.

This requires us to re-think our fundamental approach to lawyering.

Ontarians need to understand that we already have law-free courts when there are two self-represented people and often when there is only one. They don’t know the law or cite legal principles.

Judges are deciding cases without the benefit of legal argument but doing so constrained by rules of evidence created for a system using lawyers.

That often leads to having inadequate information because what the litigant knows is a fact can’t get before a judge.

It’s simple. If we really want to serve all litigants in Ontario courts justly — and with the current principles we aren’t — either we need to make changes or be honest that our self-interest trumps change. The way it is now, the system is built to serve us, the lawyers, more often than it serves the litigants. Shame on us if we don’t seek change. Oregon and Massachusetts are experimenting with specialty courts. Why can’t we?

Joel Miller is the founder of The Family Law Coach, a service dedicated to providing unbundled legal services at fixed fees remotely.

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