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Windsor lawyers decry reforms

|Written By Michael McKiernan

Statistics that show wide variations in the rates of unrepresented litigants in family court are prompting a backlash against planned legal reforms by some lawyers in one southwestern Ontario city where the overwhelming majority of people still retain counsel.

Victoria Starr has noticed an increase in the number of self-represented parties in Toronto.

The statistics, provided to Law Times by the Ministry of the Attorney General, show that across the province, 54 per cent of people who filed applications in the Ontario Court of Justice or the Ontario Superior Court of Justice under the Divorce Act, Family Law Act or Children’s Law Reform Act hadn’t retained counsel.

But the proportion of unrepresented litigants varies wildly from courthouse to courthouse. According to the most recent available statistics that cover the 12 months between April 2009 and March 2010, 83.9 per cent of applicants in Cambridge, Ont., were without a lawyer compared with just 15.6 per cent in Dryden, Ont.

Two Toronto courthouses were among those with the most unrepresented applicants, each recording rates of more than 70 per cent. Data for the city’s courthouse at 393 University Ave. was unavailable due to a change in data collection systems.

Victoria Starr, chairwoman of the Family Lawyers Association, says she has noticed an increasing number of self-represented parties in Toronto, where her practice is based.

“Everybody’s practice has files where they have self-rep on the other side, and they’re some of our most difficult cases,” she says.

“I think it’s a symptom of a bigger problem, which is that society seems to think there’s something about family law that is not real law. They have this idea that you don’t really need a lawyer in family court. It’s not true.”

In Windsor, Ont., the issue is provoking a backlash against planned reforms designed to simplify the process in family court.

Some lawyers in that city, where the vast majority of applicants retain counsel, say Attorney General Chris Bentley’s so-called Four Pillars program is unnecessary and may actually encourage more people to go it alone in family court.

The project has been rolled out as a pilot in Milton and Brampton, Ont., but is scheduled to expand across the province later this year.

Currently, just 21 per cent of people attempt to navigate the system without a lawyer in Windsor.

“This project is a make-work project for lawyers,” says Windsor family lawyer Deborah Severs.

In her view, Bentley “needs to understand that we are a unique legal community and are able to help our clients.”

Samuel Mossman, another lawyer who conducts family law litigation in Windsor, says it’s hard to pinpoint the reason for the city’s low rates of

unrepresented litigants.

“Fees are certainly lower than you would find in Toronto or London, but that doesn’t explain the difference with other modest, more blue-collar towns,” he says. “Our lawyers are sensitive to the needs of a community that is reeling from one economic blow after another.

We deal with autoworkers who used to make $35 per hour and now struggle to find $14-an-hour jobs. It’s unrealistic to look across the table and tell them you charge $350 per hour and you want a $5,000 retainer.”

The statistics can’t provide a complete picture of the number of unrepresented litigants in family court because the ministry doesn’t track representation among respondents or changes in representation throughout the length of a case, according to spokesman Brendan Crawley.

“Although a person may start without a lawyer at the time of applying, a number of people retain a lawyer once a case starts,” he said in a statement. “In many cases, when a respondent is served, they do not have a lawyer yet.

Many respondents retain a lawyer when they are served with court papers. Parties may also choose to continue without a lawyer, although they had a lawyer at the beginning of the case.”

In any case, unrepresented doesn’t equate to uninformed, Crawley noted. “Some people consult a lawyer to get information about their rights and responsibilities and then choose to represent themselves in court.

Other people have the opportunity to meet and talk with an advice counsel provided free by Legal Aid Ontario. If a self-represented person has a case in court, they may also speak to duty counsel who can give them free legal advice and sometimes assistance in court.”

Crawley highlighted efforts aimed at assisting self-represented litigants. They include mandatory information sessions, more access to duty counsel, a greater emphasis on alternative dispute resolution, and a streamlined court process.

Not everyone agrees those are solutions, however. “By tailoring the system to the self-represented litigant, you’re going to create more self-represented litigants,” Mossman says.

He sees the family law reforms as part of a wider move to keep cases out of court, something he says could have a detrimental effect on the outcomes for some parties.

At the same time, he believes Bentley will struggle to get his reforms off the ground in Windsor, especially since many of his ideas rely on senior counsel volunteering their time for free.

“Anything that gets a case out of the system is seen as a good thing,” Mossman says. “Throwing out litigation and the adversary system in favour of mediation, to me, is somewhat short-sighted.

Mediation, alternate dispute resolution, and those kinds of devices serve the powerful more than the weak and they don’t work effectively for a lot of people unless the spectre of a trial is looming on the near horizon.”

But Crawley noted it’s important not to forget the 21 per cent of people who go without representation in Windsor.

“The upfront information, additional quick access to advice, mediation to resolve issues and cases before court, and a faster route through court will help all users: those represented and those not,” he said. “It does not replace lawyers or legal advice but adds to what they can offer their clients.”  

For his part, Tom Dart, former chairman of the Ontario Bar Association’s family law section, says Windsor’s success in providing access to counsel shouldn’t insulate it from the effect of the reforms.

“The adversarial system is not necessarily the best way to resolve these disputes for a large majority of people, so I think the more that people can learn about alternate methods of resolving their disputes, the better.

The court process isn’t always the best, particularly where there are children involved and an

ongoing relationship between the parents is necessary for the sake of the kids.”

In Dart’s experience, many people are scared of retaining counsel due to cost but he says that doesn’t stop people from seeking legal advice.

“They come to us for very specific advice on a particular step in their court proceeding,” he says, adding he’s happy to see the profession looking at the idea of unbundling legal services.

“We’re plowing through with that because there are needs out there. It’s difficult to go through the court process when you don’t know what you’re doing and you do need some help somewhere along the road.”

  • Colleen
    I have nothing but good things to say about my lawyer, he is kind, caring, more important HONEST! Two words that don't often go together when describing a lawyer. I think when you embark on a family matter court case, patience is the most important virtue, my lawyer was honest with me telling me that my case could take a long time especially if we had to go to court, so knowing this upfront helped me prepare for the long haul,however I have to be honest, I am wanting it to be over soon,. Lawyers generally get a bad rap, however there are a few who are people of integrity and not out to line their pockets!!
  • Tammie
    If i thought this would make a difference i would put my whole sad story. I truly agree that the lawyers and the judges are the only ones comming out ahead. I lost most child support because my ex had more money than me. I didnt qualify for legal aid because i make $42000.00 per year. but supporting 3 kids on that is not enough. So when i ran out of money my lawyer ran out on me. 4 years later i still have not recieved a child support payment. We have a signed agreement (for less than half half of what he owes because i cant afford a court case) and it has been sitting on a judges desk for the last 6 months because they were "backed up" from summer holidays. I signed the agreement at the end of july 2011 it is january 17 2012 and FRO still has not recieved it. Funny when i go on vacation I have to make sure my work is still being done.
  • Robert
    My total lawyer was over $35,000 and took 1.5 years to complete. The reason it took so long is that if found out that lawyers give preferential treatment to each other over their clients. You scratch my back and I scratch yours. If it wasn’t for the last judge being a friend of my parents and telling both lawyers to stop running up my bill, my bill would have been a lot higher. My ex was subsided and I had to pay full pop. Her bill was only $5000. The Family law system is wrong is so many ways. We get raped and the lawyer make $$$$$$$. Layers write the laws and run the world.
  • Martha
    It makes no sense that Toronto, with one of the highest medium incomes in all of Canada, would have more than 3 times the number of unrepresented litigants than Windsor, with one of the lowest medium incomes.

    The fees and billing practices of Toronto lawyers are not just high - they are excessive and and unethical. These statistics should alert the powers that be that something is seriously wrong with this system!
  • Angela Browne
    I am finding it is the cost of a lawyer that leads to self-representation, not the eagerness to go it alone. I think this program is a great idea; as well, the jurisdiction of licensed paralegals should be expanded to include some family law cases as well. The days where litigants can afford $40,000 - $80,000 to finish a case are over.
  • Neil
    I don't think they believe it's not real law as opposed to it's a rip off and/or unafforable.
  • daddyof3
    As an "auto worker" getting $35/hr I can't qualify for legal aid even though after support and taxes, I have to get food from the food bank and can't pay my bills. Mostly in part to the delays caused by lawyers and the never ending outrageous court costs being awarded by the bias system of making sure the lawyers get what they ask for the appearance of a corrupt and unjust system is only for the best interests of the lawyers and not the best interests of the child as is claimed. Fraud and perjury go unchecked in the Family Courts. There is no true access to justice as there is no justice in the Family Courts.
  • Rob Harvie
    The not-so-subtle message of our collective governments is that lawyers are the problem and that if we can be weeded out, things will be easer.

    As was stated by Dirk the Butcher in Henry VI (Part 2), in order to succeed in reducing society to anarchy, "First thing we do, is kill all the lawyers."

    Just as Dirk the Butcher was a stupid and brutal man, the efforts of our collective Attorneys General are also stupid and brutal.

    If what we do is so easy, why is it that our Supreme Court of Canada so regularly pontificates on why we haven't done ENOUGH in family law?

    The "access to justice" effort is one of the most misguided and poorly considered efforts of our time.. which, utlimately, is costing governments more than just providing better funding for legal aid.
  • Taxpayer
    Don`t haul out statistics or facts to try and convince A.G. Chris Bentley of anything.
    He tends to ignore ignores statistics,facts and Expert Advice unless they support his position.

    Chris is now running a make work program for Crown Attorneys.
    The key to forcing people to retain Counsel is first to strip them of the Presumption of Innocence,presume them guilty of a crime and make them prove their innocence.

    Maybe you could get him to rig...I mean revamp the Family Law System the same way.
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