In Ontario, there has been much discussion in the media and amongst various legal groups about ‘access to justice’ and how, in particular, the high cost of litigation prevents people from ‘accessing the justice system’. Recently, the Chief Justice of the Supreme Court of Canada Chief dealt with this issue in her remarks at the Canadian Bar Association Conference in Halifax Nova Scotia. She suggested that lawyers should consider more ‘pro bono’ work – that is work for free.
There is no doubt that the cost of legal services can have a heavy impact on the family that separates. From the lawyer’s perspective, there are many reasons why the cost is so high and it might be helpful to the debate to understand how the costs rise so quickly. This article is an ‘in the trenches’ look at the typical family law file and all references to facts are entirely fictitious and are meant for illustration purposes only. In addition, this article deals only with Ontario Family Law and Practice but there is likely little doubt that the same issues arise in other jurisdictions. Below are just a few reasons why costs are so high.
- First, the fact situation. In most cases, there are multiple issues: children, perhaps domestic violence is an issue, various properties including a home, perhaps a small family business, not to mention household contents, and more complicated property items such as stock options, trust arrangements or a defined benefit pension plan. There might be a need to involve other lawyers to assist in determining whether there is a case for other remedies, such as a claim for damages arising out of domestic assault. There is almost always, a fairly complicated issue in determining income for the payment of child or spousal support. This is because, thanks to the current economy, so many people are self employed and often, do not keep very good financial records to establish their true income. In addition, the explosion of the internet age and computer systems generally have added to the complexity of gathering necessary information. In other words, the fact situations today are a reflection of the sophistication of society generally. It is the lawyer’s job, if acting in accordance with the Rules of Professional Conduct, to gather all of this information first in order to properly advise the client. The information related to the financial issues of support and property division are generally referred to as ‘financial disclosure’ in Ontario. There are very few ‘easy cases’ these days. Those people who think they have an ‘easy case’ usually sort things out on their own, without legal advice, and therefore often without knowledge as to their legal rights.
- Secondly, experts are almost always necessary to deal with the issues that must be resolved. For child custody disputes, there is almost always a need to engage a psychologist or counsellor to assist the couple in resolving the issues and developing a parenting plan. With respect to property division, in Ontario, there is a focus on sharing the ‘wealth’ that was generated during the marriage. While this is definitely a noble principal, there is a problem with this concept. The problem is that, in every case, experts are needed to determine the value of any property. Appraisers for land or personal property, actuaries for pension valuations, business valuation experts for businesses, specialized experts for specialized items of property such as collectables. Needless to say, experts are not cheap but the diligent lawyer could be held accountable by his professional body if he did not retain them when necessary. Expert’s fees are in addition to legal fees and can add from a minimum of $5,000 in costs to the average case.
- Thirdly, the time involved in properly preparing the case for the client is the same whether or not the case goes to trial. It is necessary to learn all the relevant facts and gather all the relevant evidence as if the case were going to go to trial. That puts the client in a position of strength during negotiations – he or she knows what she can prove and therefore knows their entitlement.
- Fourthly, the court system. I think it is common knowledge in Ontario that the court system is not high on the list of government priorities. It is underfunded. There are not enough judges to hear family cases. There is no specialized court set up to deal only with family law cases, although in name, we do have Family Court in 17 jurisdictions in Ontario and we do have Family Court in all other jurisdictions at the Ontario Court of Justice. But, outside the 17 jurisdictions, the Family Court cannot deal with divorce or property issues – it can only deal primarily with children and support issues. In those jurisdictions, therefore the couple who wants to deal with property or divorce must go to the Superior Court of Justice which is not a specialized court. In several areas in Ontario, it can take up to two years to get to trial on all of the issues. Over this amount of time, the factual issues naturally change – children and jobs and income don’t stay static. When the facts change, the issues change and the lawyer has to spend more valuable time updating all of the information. Many steps in the family court system are repetitive – court paperwork has to be prepared and re-prepared. When a case is called on for trial, there is never a set date – your case is always on a ‘list of cases to be heard’. You might be number 200 on that list. The lawyer has to have the case ready for trial because the case might be called. If it not called, it is often adjourned to the ‘next sittings’ of the court, which, in some parts of Ontario could be several months away. So the lawyer may well prepare the case in full spending considerable time on it, only to learn that he will have to refresh his memory in several months time, making sure that the witnesses are all available for that next date and deal with any facts that occur during the interval). Needless to say this takes a toll on the client and the witnesses – they are anxious enough to attend trial and then are deflated when it does not go ahead, knowing that they will have to go all through this again. If the trial is a long one, this process could go on for several ‘court sittings’. In addition, Judges are pressed for time because there are not enough of them to hear all the cases. So they need the lawyer and the parties to present their evidence efficiently and succinctly – sticking to the issues. They need documentation set out properly and logically so they can quickly grasp any complex points in the evidence. Once again, preparation of this type takes considerable time on the part of the lawyer and greatly adds to the cost of the trial.
If lawyers are to do their job properly, perform their “due diligence”, as I hope you can see from the above points, a great amount of time has to be spent, and yes, this is at the expense of the client. But, I do not know of any reputable family law lawyer who gets paid for every hour they spend on a client file. Most lawyers know that their clients simply can’t afford to pay the fees required for them to act with due diligence in relation to all of the issues. But they also know that they can’t ‘cut corners’ just because the client can’t pay. So the lawyer ‘writes off’ time and does not bill the client or cuts the fee to what the client can afford to pay. In other words, for the benefit of our Chief Justice who spoke so eloquently in Halifax, family law lawyers are already doing considerable “pro bono” work.
In my next blog, I will try to flesh out some of the other ways that might help clients and lawyers become more efficient, reduce expense and give the client more ‘access to justice’.