The legal concepts and procedures discussed in this post are for anecdotal purposes only and should not be relied upon as legal advice.
Why family law?
Family law may be the area of law that is most affected by the access to justice crisis for two simple reasons:
- Family law has one of the highest rates of self-representation: a report prepared by Dr. MacFarlane estimates self-representation at over 40% and notes that anywhere between 60% and 75% of those filing family law documents at Ontario courthouses do so without a lawyer.
- Access to full representation paid for by Legal Aid Ontario through the certificate program is severely limited and has been mostly replaced by drop-in, short-term or same-day legal services
This means that perhaps more than in any other area of law, parties in family law proceedings are more likely to be self-represented, and therefore face the greatest risk in getting outcomes which do not reflect their entitlements or rights under the law.
A brief overview of family law
Family law covers child custody and access, child and spousal support, support enforcement proceedings, property division and child protection. While having the stereotype of a legal forum which adjudicates petty disputes between bickering couples, many crucial decisions are made on a daily basis in our family courts, including:
- How much child support a single parent receives;
- When and if children can visit a parent;
- Who children live with and who makes life decisions for them;
- When should the failure of paying support lead to jail time;
- When and under what circumstances children should be removed from their families temporarily or forever.
These decisions are made through time-sensitive and complex procedures which require careful consideration and cause significant frustration to those who are not familiar with them. Take, for example, some of the different vehicles through which legal arguments make their way to a court:
- An “application” is made to the court where the applicant asks for specific orders from the court
- A “motion” is similar, but asks for temporary relief and only once an application has been submitted and case conference has been held, unless the matter is urgent
- A “motion to change” is not really a motion, but an application to change a previous court order
Initiating any one of these proceedings creates a series of deadlines for a multitude of steps which must be taken to maintain these proceedings in the court process. Everything filed with the court must be delivered (“served on”) the other party, and the rules of service alone are over a page long with multiple exceptions and exclusions.
Needless to say, navigating these procedures without the help of someone familiar with the process (usually a lawyer) is a daunting task.
Legal Aid Ontario offers a variety of services, most of which stop short of full representation. Summary legal advice is available via phone or in person to help people navigate the family law system. There are lawyers in courtrooms (“duty counsel”) who can assist individuals who have court appearances that day. There are limited certificates (when a lawyer is paid by LAO to represent a client) for independent legal advice when parties are in the mediation process or to prepare a separation agreement. There are extended duty counsel offices which help clients draft documents and give some degree of continued service over a period of time. Full representation certificates are available, but they are granted sparingly and usually require aggravating circumstances such as domestic violence.
While these services help a lot of individuals, they all stop short of a full representation certificate where a lawyer is responsible for a client’s file and takes on the client in the context of a traditional lawyer-client relationship. For this reason, family courts are full of self-represented litigants who have had some legal assistance at some point but have no professional who is providing consistent and continued service.
Some individuals can manage the responsibility of taking on their own case, but many, especially those who are low-income and may face other barriers such as language and mental health issues, cannot. Those who work in the family law system, whether judges, lawyers, clerks or administrative court staff, have come into contact with individuals who have missed deadlines, filled out the wrong forms or failed to make the relevant arguments to get what they want. And the fact that these events occur on a regular basis leads to the obvious conclusion that many people are not getting the outcomes which they deserve and to which they are entitled. A quick revision of the important decisions that a family court can make (listed above) will give you a sense of the gravity of this situation.
The fact that so many people are navigating this complex legal regime without the tools to do so effectively makes the fairness of the laws on paper a moot point. Every day, decisions are being made for people who are failing to effectively navigate the family law system, and this is one manifestation of the crisis our society is facing in accessing justice.