Windsor lawyers decry reforms

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.

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.”

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