Access to Justice: More Legal Aid Funding Is Not Enough

The Legal Aid crisis in B.C. is yet another indication that the justice system is simply not working for most Canadians. Access to justice has become a major problem across Canada and it requires a holistic solution, including both more money to Legal Aid services as well as the promotion of new types of service models for people to choose to represent themselves.

On March 29, the B.C. government and the Legal Services Society announced a one time grant of $7.9 million to temporarily increase payments to Legal Aid lawyers. This was in response to a threatened strike by Legal Aid lawyers across the province who had not received a pay increase in about 30 years. The money will run out by October 31, 2019, when a new deal must be achieved or a full strike will commence, stopping all work on current Legal Aid files and preventing new files from being opened. If this occurs, thousands of people with criminal and family law files now in the court system will see their cases put on hold.

The decades of neglect of the Legal Aid system in B.C. will require a major boost in funding and the Association of Legal Aid Lawyers has proposed a $100 Million injection into the system to increase the tariff paid to Legal Aid lawyers and expand Legal Aid services into other areas of law. However, while increased Legal Aid funding is needed to ensure that lawyers keep taking Legal Aid files, there will still be many people who earn too much to qualify for Legal Aid but not enough to pay for a lawyer on a private retainer.

In practice I often encounter people who feel stuck because Legal Aid tells them they make too much money, but they also can’t afford to pay a private lawyer for a trial. The typical two-day trial now costs $30,000[1] but in family law cases after a separation or divorce it can be much higher, especially when parents are fighting over children. As a result, the people who retain lawyers are those who have a lot of money or those who are living below the poverty line, while the middle-class litigant is stuck without representation.

New evidence suggests that over thirty percent of people who represent themselves in court have incomes of over $50,000[2]. This is far above the threshold to qualify for Legal Aid in all provinces, which is typically an income below $19,000. Therefore, most Canadians would never be able to qualify for Legal Aid, even with a huge cash injection into the Legal Aid system. They simply earn too much.

The reality is that legal representation is beyond the reach of many Canadians and this is driving up the rates of self-representation in family law and divorce cases across Canada. In some Canadian jurisdictions, 50 – 70% of all family law cases before the courts have at least one-self represented party[3]. This creates more backlog in courthouses already stressed by the shortage of judges and the slow progress in filling judicial vacancies. Most self-represented litigants lack basic knowledge of court forms and procedures, and are unable to assess the merits of their case as they have no training in the foundational legislation and common law decisions. This leads to incorrectly filed materials, incomplete disclosure and poor evidence, and judges are often directing self-represented litigants to refile and adjourn their cases. It also leads to the filing of cases that have little chance of success. This wastes valuable court time and resources and it increases the number of court appearances per file, creating longer delays for everyone waiting to see a judge.

Also, someone who represents themselves in court against a lawyer is fighting an uphill battle and the odds are stacked against them. Lawyers come to court armed with years of training and practical experience. I have heard from clients that getting up to speed on the law and court procedures, while working and representing themselves is nearly impossible. Therefore, a self-represented litigant who can’t afford their own lawyer often has less success in court than someone who has a lawyer. This creates a sense of unfairness, and confidence in the justice system is diminished.

Funding the Legal Aid system to the level where everyone who cannot afford a lawyer can qualify is simply not going to happen. Therefore, we need to look outside the box at different models for legal service delivery. This is where unbundled legal services fit into the solution. Unbundled legal services are also called limited scope retainers, a la carte legal services and legal coaching. Whatever you call it, from my own experience people get excited when they hear about this option.

Unbundled legal services provide self-represented litigants with legal assistance that meets a particular need and is more affordable than a full retainer. This is because unbundled legal services are all about customization. Rather than paying a lawyer a retainer to do all legal work on a file, a file can be broken down into pieces and delivered how and when a client decides. For example, with an unbundled retainer a family lawyer can be retained to give legal advice on how to prepare for mediation, draft a legal research memo on a spousal support issue, edit divorce documents or attend court for one parenting application. Legal coaching can also be provided where the family lawyer works in the background assisting the client in writing letters, drafting affidavits, negotiating settlement or preparing for a trial.

Moreover, when legal services are unbundled, clients can pay for what they need when they need it. They direct their case and come in for assistance when they need help or advice on a particular issue. In this way the client is in full control over how much they are spending and can choose to access services when they can afford it. This is important to most people who access these services but not all. While the majority of self-represented clients I have provided unbundled services for are unable to afford a full service retainer, I have also worked with high net-worth individuals who are confident in representing themselves in court with some legal coaching in the background.

Research out of Alberta on unbundled legal services indicates that people receiving these services are extremely satisfied. The Alberta Limited Legal Services Project[4] found that 90% of participating clients were very satisfied with the unbundled legal services they received. 85% of participants said that the amount that they were charged for unbundled legal services was reasonable, and 86% said that unbundled legal services were cheaper than traditional retainers. Moreover, 90% of clients who received unbundled legal services said that getting help from a lawyer on an unbundled basis was better than having no legal assistance at all.

Much more needs to be done to inform the public about unbundled legal services as this option is still relatively unknown to most Canadians in the justice system. Organizations like the National Self Represented Litigants Project are doing a great job at increasing awareness and some family law firms are now entering into the business of helping self-represented litigants, but more needs to be done to expand into other areas of law and market these services.

Improving access to justice will require a multi-pronged approach and providing additional options for legal services is part of the solution. More must be done to promote unbundled/limited scope retainers so that more self-represented litigants have options for legal services that meet their needs and budgets.

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Marcus Sixta is the owner of Crossroads Law, a boutique family law firm in Vancouver and Calgary.

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[1] http://www.canadianlawyermag.com/5610/The-Going-Rate.html Canadian Lawyer Magazine national survey found this to be the average cost Canada wide.

[2] http://www.crilf.ca/Documents/Unbunded_Legal_Services_Report_-_Aug_2018.pdf

[3] https://www.cba.org/Publications-Resources/CBA-Practice-Link/solo/2016/Tips-for-dealing 50% of family law cases in Alberta according to the CBA. http://www.justice.gc.ca/eng/rp-pr/fl-lf/divorce/jf-pf/srl-pnr.html and up to 74% according to the Department of Justice.

[4] http://www.crilf.ca/Documents/Unbunded_Legal_Services_Report_-_Aug_2018.pdf