Sometimes Legal Aid Is the Problem, Not the Solution

Introduction

Legal aid is intended to assist the most vulnerable in our society, and ensure that they obtain justice irrespective of their financial situations. Often it accomplishes this lofty objective. Far too frequently it does not.

What is more concerning is how references to legal aid are frequently invoked as an obstacle to legal reforms.

One such example would be for the proposal by the Bonkalo Report for paralegals to practice family law. Not unexpectedly, there are family lawyers and judges who have already come out against it. The most recent are several lawyer organizations and some judges of the Ontario Court of Justice, the court in which many of these paralegals are anticipated to practice.

Of course these judges have never actually had a paralegal appear before them, given the existing scope of practice for paralegals in Ontario. Justice Bonkalo met with adjudicators who did have paralegals appearing before them, and concluded,

In the experience of many of these tribunals, paralegals excel at paperwork and advocacy in less complex cases. In each of these areas, paralegals and lawyers have formed formal and informal affiliations that allow for referrals where cases would be better handled by one or the other. My impression after my consultations with these tribunal members was that, without paralegals, many tribunals would be not be able to function as efficiently and effectively.

The more problematic component of objections from family law organizations and OCJ justices are that the proposed solution is to simply increase funding to legal aid. This refrain has been echoed repeatedly in the media, especially since the recent revelation of a $26 million Legal Aid Ontario deficit.

I responded to these calls in my own Letter to the Editor, in particular given a subsequent third-party probe prompted by the Attorney General. I will reproduce the letter here in full:

One of the greatest fallacies we have in legal reform is that increasing legal aid is a panacea to all of our problems in the legal industry. Even with increased funding, the majority of Canadians are ineligible, and still cannot afford a lawyer.

Legal aid expansions only really benefit us in the legal profession, by providing a steady and predictable source of government-funded clients.

What’s needed is more comprehensive overhauls of our legal system, including greater reliance on technology, more free and accessible legal information, and greater consequences for inappropriate conduct by lawyers or self-represented parties. Many of us within the law are pushing for these changes, as is the attorney general.

There are some problematic aspects of this decision. The parties were recent immigrants to Canada from Iraq, possibly refugees, and Justice Pazaratz goes to some length to point out that neither of them had ever worked in Canada or paid taxes in this country.

Although perhaps important to recognize this fact in the context of squandered public resources, what is also missing is the vulnerabilities of parties and the likelihood that they probably understood very little about the legal system and how it operates. Their lack of employment opportunities may have had to do with the challenges of relocating to Canada, learning the language, and finding gainful employment here. Instead, the responsibility for this fiasco may lie elsewhere.

The case here only settled after Justice Pazaratz threatened to request that the Area Director of Legal Aid Ontario attend court to justify the expenditure of resources on this matter. The simple refusal of legal aid to fund both parties likely would have expedited the resolution of this case. The provision of legal aid, in other words, is what caused the unnecessary extension of the legal dispute.

Also complicating this case was allegations of domestic violence, which resulted in criminal charges that were withdrawn for lack of evidence. The parties, funded by legal aid, were using the family court system to attempt to address an unrelated, yet very serious allegation. The relevance of the issue though was suspect, as the parties already had no contact with each other and lived in different cities.

The entire situation could have been better resolved if there was a mandatory open mediation by a domestic violence trained professional, who could provide the court a report indicating the presence or absence of this risk factor, and remove this dispute from being dragged through family courts. If the parties continued with these issues before the family courts, full indemnity costs could be imposed. However, these types of creative solutions however are only possible when we step away from the exclusive preoccupation with legal aid funding, and start to brainstorm the alternatives.

Providing legal aid can be even more problematic in family law cases where one side is funded and the other side is not. We know from numerous studies in family law that the vast majority of Canadians are self-represented because they cannot afford a lawyer, but are still not impoverished enough to be eligible for legal aid. Although stated in the criminal context, Justice Nordheimer stated last year in R. v Moodie,

[6] It should be obvious to any outside observer that the income thresholds being used by Legal Aid Ontario do not bear any reasonable relationship to what constitutes poverty in this country. As just one comparator, in a report issued last year, Statistics Canada calculated the low income cut-off, before tax, for a single person living in a metropolitan area (more than 500,000 people) for 2014 at $24,328, or more than twice the figure that Legal Aid Ontario uses[1]. The low income cut-off is the level of income below which persons are paying a disproportionate amount of their income for basic necessities (food, shelter and clothing). Some people equate this figure with the “poverty line” although Statistics Canada expressly states that this is not a measure of poverty. The reason for that is simple. There is no accepted definition of “poverty”. As Statistics Canada says “Decisions on what defines poverty are subjective and ultimately arbitrary”[2].

No amount of reasonable increases to legal aid will ever increase this threshold to actually address affordability of legal services in family law.

Where Only One Side Obtains Legal Aid

Given the challenges of meeting the legal aid threshold, it is not unusual for the party on the other side of a certificate to be self-represented. Justice Pazaratz’s earlier decision in 2011 in Izyuk v. Bilousov helps illustrate the problems that can emerge where one party in family proceedings meets this cut-off, but the other does not and is unable to obtain legal representation,

1. The popular beverage has a catchy slogan: “Red Bull gives you wings.”

2. But at this costs hearing, the self-represented Respondent father suggested a wry variation: “Legal Aid gives you wings.”

…

58. The dynamics on this file are all too common, and cry out for judicial awareness. In a troubled economy we are seeing more self-represented parties in Family Court, and certainly more people with limited finances. Inevitably, these ingredients create greater strains on the administration of justice. Combined with limited judicial resources, the need to encourage settlement and discourage inappropriate behaviour by litigants has never been more pressing.

59. With Legal Aid tightening eligibility rules, it is likely that just about any litigant retaining counsel on a certificate will have trouble paying costs if they lose. But combining a “free lawyer” with a perceived immunity from costs is a dangerous mix. Dangerous for opposing litigants. Dangerous for children like Maxeem, whose lives are needlessly disrupted by bitter and unnecessary litigation. And dangerous for a Family Court system whose resources are already strained.

60. In the case at bar, the Applicant conducted herself as if her Legal Aid certificate amounted to a blank cheque – unlimited resources which most unrepresented Respondents would be hard-pressed to match.  A scheduled 3-4 day trial turned into 17 days, largely because the Applicant fought every issue and pursued every dubious allegation, to the bitter end. She appeared to make up evidence and allegations as she went along. She defied court orders directly impacting on the child, even while the trial was underway. There have to be consequences. Either we sanction this irresponsible and destructive behaviour, or we invite more of the same.

61. Encouraging settlement and discouraging inappropriate behaviour by litigants is important in all litigation – but particularly in family law, and most particularly in custody cases. No litigant should perceive they have “wings” – the ability to say or do anything they want in court, without consequences.

[emphasis in underline added; emphasis in italics in original]

Abuse of legal aid in this way is increasingly becoming the norm in family law rather than the exception. Only in the few instances where matters proceed to trial and receive thorough judicial scrutiny are parties faced with any accountability through cost consequences. Some members of the judiciary could therefore be excused for being oblivious to these “all too common” dynamics, but the lawyers receiving these certificates or opposing reform should not be.

That’s not to say we should necessarily place the blame on the lawyers all the time. In yet another Justice Pazaratz decision, Scipione v Scipione, he dealt with a complaint to the law society by one lawyer in a family proceeding against the other and concluded it to be in bad faith,

106. Family law can be a nasty business – more often than not because of the parties, even though the lawyers usually get the blame.

a. Lawyers practising family law face a particularly difficult, hostile and accusatory environment.
b. As officers of the court they have an obligation to judges.
c. And as judges we have a corresponding obligation to the legal profession.

107. We already have increasing concern about the number of self-represented litigants in family court.

a. That’s not just because of unaffordable legal fees.
b. It’s also because of a growing shortage of experienced lawyers willing to do this kind of work.
c. The reasons are well-known: Too many rules. Too much professional exposure. Too much paperwork. Too much emotion. Too many hassles.
d. Most of that comes with the territory.
e. But while the focus should always be on litigants – and not lawyers – at a certain point our judicial system has an obligation to step in when lawyers take hits they don’t deserve.

108. Malicious or reckless personal attacks against a spouse’s lawyer must be discouraged.

a. They are not just mean-spirited.
b. They often constitute transparent attempts to punish the lawyer for doing their job. Or discourage the lawyer from continuing to do their job.
c. They create distractions.
d. They waste time and money, and sap energy.
e. They are a form of intimidation and affect access to justice.
f. Such complaints cost virtually nothing to file. And yet they can create enormous financial and emotional headaches for lawyers who have to spend significant time responding to attacks on their reputation and potentially their livelihood.
g. Sometimes they force the accused lawyer to transfer the file.
h. That sort of interference with the solicitor-client relationship strikes at the core of our justice system.

[emphasis in underline added; emphasis in italics in original]

At what point do criticisms against lawyers who unnecessarily expend legal aid resources against self-represented parties become justified? Why just single out administrative functions of legal aid for accountability, when they are themselves relying on representations by counsel about what is reasonably necessary for a file to proceed? Also underlying the decision in Scipione is that some of the greatest casualties of a broken family law system is retention of competent representation in the field, despite the presence of compensation.

These cases also demonstrate that calls from the family law bar and bench to simply increase legal aid funding do nothing to ensure that such funding is used appropriately. When it is used inappropriately, the effects are not just on the frequently unrepresented party on the other end, but on the justice system as a whole.

The few family lawyers who cash a blank cheque of legal aid funding are not doing their job properly, and are only serving their own interests. They are certainly more worthy of condemnation than the unsophisticated members of the public who simply comply with the instructions provided to them by these counsel.

When Legal Aid Fixation Prevents Development of Alternatives 

Not only is legal aid sometimes the problem, but there are times that the fixation on legal aid increases blinds the bar to the alternatives that might be available. Ryerson University’s Legal Innovation Zone (LIZ) released a February 2016 report following a lengthy Family Reform Community Collaboration that I participated in, which envisioned a better approach to family law disputes through the use of early screening and triage to appropriate resources. Central to this approach was independence of the legal aid system entirely,

We estimated a potential annual market of $40 to $200 million that is not being met by lawyers or other professionals today.

The report highlights the 2015 increases to Legal Aid Ontario of $154 million, the largest increase in the organization’s history, and the $30 million increase preceding it in 2013 as efforts to improve outcomes for low-income families, but conclude,

…recent family law statistics suggest that the court process is still too slow, expensive, and complex. As of 2013/2014, of the more than 300,000 family law cases in Canada, only about half were resolved in a year or less, and many took longer than three years to resolve.

To further complicate matters, an estimated 50%-80% of family litigants are self-represented. Most self-represented litigants report that navigating the court system is difficult or very difficult, and about half believe that the lack of a lawyer makes the process slower or much slower.

[emphasis added]

Throwing more money at an already ineffective system is not an effective way to use taxpayers’ money either.

The LIZ report envisions the use of multidisciplinary and collaborative teams, in particular to further advance the principles of reform identified in the 2009 legislative changes, and broader calls from the bar for a more streamlined process. The use of paralegals as part of these types of multidisciplinary teams were described in the Bonkalo Report, and was central to her recommendation of a new paralegal family law license, ironically premised on the successful experience of Legal Aid Ontario in achieving the same in criminal law,

While I am not recommending supervision of paralegals by lawyers, I by no means intend to discourage lawyers and paralegals from forming affiliations, partnerships and networks. Indeed, the optimal arrangement would see paralegals and lawyers working alongside one another, making referrals and consulting as necessary, or in interdisciplinary teams (such as those LAO has recently developed in the criminal law context). While such interdisciplinary models represent the ideal, they should not be mandatory in order for paralegals to provide legal services.

[emphasis added; parenthesis in the original]

The fixation on legal aid therefore reflect an entirely unrealistic perspective of a universally accessible family law system that hasn’t existed for decades, and also blinds its proponents from accurately identifying the solutions.

Conclusions

Increasing legal aid is not progressive or innovative, and does nothing to address the underlying issues identified in Abdulaahi, Izyuk, and countless unreported decisions. Legal aid advocates for all our systemic legal problems should not be heeded, and are far from the visionaries we need in the bar to chart the course ahead.

The experience with historic increases to legal aid funding also fails to demonstrate any significant improvements to the legal system. The folly of repeating these calls, despite long-term stagnation, reeks of myopia, self-interest and obliviousness.

A sustainable legal aid program requires that legal aid be used only where it is necessary to do so. Our current family law system fails to ensure proper accountability of the provision of legal aid. The use of some legal aid funds to monitor and assess the provision of certificates, rather than just increase eligibility, could be of some assistance. The professional responsibilities of lawyers receiving these funds to improve the justice system under Rule 5.6 should also provide some constraint.

But first we must recognize that even with representation the system is ultimately broken. Erin Anderssen highlighted this in The Globe in 2011, concluding in Why Canada needs a split from its messy divorce laws that the system is a wreck,

Love is grand, the saying goes, divorce is 100 grand.

True words for 49-year-old Lucas Kott, a self-employed construction worker who estimates that after all the lawyer’s fees, affidavits and court appearances, he and his soon-to-be ex-wife will have spent nearly $125,000 arguing over custody of their two young children. His half has already put him $20,000 in debt, even before a five-day trial scheduled for the fall – money he knows would have been better spent on his kids. Now, he can’t afford to move out of his two-bedroom Vancouver apartment.

“There is a lot of emotion. You are at the mercy of the lawyers,” he says. And, unlike with many breakups, there was no haggling over property. “This is not a decision about what kind of parent I am, or what kind of parent my wife is. It’s the process that is very complicated.”

Anderssen looks to Australia, where they have seen a 22% drop in court-based custody disputes after the implementation of counseling and mediation services through Family Relationship Centres (FRCs). The FRCs were created following the Family Law Amendment (Shared Care Responsibility) Act 2006, with a greater presumption of “equal shared parental responsibility.” This is accomplished through a focus on a family reorganization paradigm instead of conflict and termination of historic relationships. A subsequent study in 2013 indicated an even further decline of 32% of child-based disputes over 5 years. The vast majority of the cases are now resolved independently between the parties, without any court involvement at all.

Jane Murphy and Jana Singer indicate in the Maryland Law Review Endnotes that lower income families “are subject to a system designed primarily to reduce the state’s welfare costs, rather than to resolve disputes respectfully or to promote the interests of children.” They cite Australia’s FRCs as a promising alternative towards a shift towards community based programs.

Australia’s FRCs prioritize the principles under s 60CC(2) of the Family Law Act 1975 in determining what is in the child’s best interests,

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The child’s wishes or views, and the capacity of a parent to provide for a child’s needs, are secondary or additional factors given the difficulty in accurately ascertaining these. Although some studies have found this has created some psychological strain to the children, the recommendations have centered on greater awareness for the lawyers and professionals involved in assisting helpful arrangements instead of promoting conflict. One of the greatest obstacles to accomplishing “responsible lawyering” in the FRC context is the undue emphasis by some lawyers on their adult clients in proceedings, rather than the children’s interests or the family as a whole.

The U.K. has also conducted a significant overhaul of its family law system, prompted in large measure out of a need to create budgetary savings. Following the Norgrove Review, legal aid for family law was severely curtailed under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 for all cases except for victims of domestic violence. New gatekeeping functions, introduced in 2014, require that all private family law matters are now dealt with by a lay magistrate. The use of a District Judge or Circuit Judge is reserved for matters of sufficient complexity.

Anderssen also interviewed several senior family law practitioners in Ontario to identify other creative solutions for implementation here, which included greater public legal education and devolving much of the family disputes into a tribunal-style model.

If anyone has visited one of Ontario’s 235 tribunal in the past decade, they’ll notice a few stark observations – there are a lot more paralegals around than lawyers, and the proceedings are far more informal. What’s most important is that almost nobody, except for specialty clinics and some limited certificates, is on legal aid.