How to Solve the Crisis in the Family Court System

Every so often, an outcry over the crisis in affordable court representation breaks out in the media, usually initiated by a judge’s pronouncements or a released report. For a few days, the newspapers publish screaming headlines and angry denouncements side by side with promises of reforms by concerned authorities. And then, just as quickly as the tumult arose, the issue becomes relegated to back pages and occasional editorials before fading into black.

The most recent public flare-up took place last month. Its focus was on family law courts with endless lineups of self-represented clients on one side and an array of sharpshooter lawyers on the other, engaged in what resembles a judicial slaughter of innocents.

The family law bar picks out their prey with the ruthlessness of hungry predators, their reward often being a big tasty chunk of the proceeds of sale of matrimonial homes secured by collateral mortgages arranged to guarantee payment of their astronomical legal fees.

Endless rounds of court appearances, often over picayune issues, a torrent of case conferences and interminable adjournments are deeply structured into an underfunded, overcrowded and underjudged family court system which operates under estoric rules comparable in their complexity to technical flight manuals.  Hang on to your hats, folks! It’s a wild flight through a legal labyrinth.

Of course, every time the crisis surfaces, the keepers of the rolls proclaim ersatz solutions to the persistent conundrum of under-representation.  And then, nothing more is heard…

Last month’s discourse focused on the role paralegals could play in alleviating the shortage of family court representation. The recommendation by Ontario Court Chief Justice Annemarie Bonkalo to allow properly trained paralegals into some of the family courtrooms to ease the crisis was roundly condemned by the elites of the legal profession who camouflage their monopoly over legal representation with dire warnings about the complexity of family law and the importance of child custody and access issues, which, of course, only lawyers are smart enough to deal with.  Not a word from the Family Lawyers Association or the Law Society about the deleterious effect of sky high legal fees on the quality of justice handed out to 60% of all litigants who can’t afford a month’s salary to pay for a half day’s attendance in court by a lawyer.

The argument against allowing paralegals into family courts are specious. First of all, paralegals were allowed to work in family law courts for decades before 2007, the year that lawyers excluded their more affordable cousins from these courts under the ironically named Access to Justice Act, thereby sealing lawyers’ monopoly over this lucrative piece of judicial real estate. Until then, paralegals were allowed to represent clients on all custody and access issues, which, despite their currently proclaimed importance and complexity, are relegated to the lower Ontario Courts.  In counties where “Unified” Family Court systems were established, paralegals were also allowed, subject to a mere routine formality of obtaining judicial permission, to represent clients in property disputes as well.  Throughout this time, one rarely heard about any quality of representation issues involving paralegals in family courts, the vast majority of whom provided sorely needed advice, especially for those women who are often driven into distress and abuse by domestic violence.

It is precisely because of the importance of family law issues that paralegals should be permitted to provide affordable justice.  They help equalize the scales of justice for impoverished spouses as well as minorities who have been formally recognized as disproportionate victims of institutional bias in their treatment by the Childrens’ Aid Societies (CAS) who often are overbearing at best and abusive at worst. CAS proposals are routinely rubber- stamped by family court judges.

The Law Society, which laughably pretends not to represent the interests of lawyers, proclaims “objectivity” in the current exchange but plays down the role that paralegals could play once again in family courts as “only one tool that could potentially strengthen the family law system.”  (Read: don’t hold your breath).

Family law lawyers are the exemplar of the axiom that greedy persons being paid an uncapped hourly rate will prolong their work forever to collect as much payment as possible. As one litigant proclaims in a letter to the Toronto Star: “All the better if the client owns a home”.

The èlitist self-regard and crass self-interest of lawyers permeates the entire family court system.  It is even the subtext for “progressives” who wrongly counterpose expanding the scope for practice of paralegals to adequately funding the legal aid system with its ridiculous qualifying annual means test of $13,000 earnings for individuals and $29,000 for a family of four!

A properly funded legal aid system, of course, is vital, especially for the majority of those who can’t afford representation and who are overwhelmingly women or minority group members and marginalized victims of domestic violence.  As well, busting up the lawyers’ monopoly by allowing  competition from thousands of more affordable paralegals will ease the dizzying escalation of lawyers’ fees.

The vast majority of  family court proceedings involve child support, restraining orders and custody and access issues, most of which can be resolved by the application of a few basic legal principles and the child support guidelines.  Much of the “complexity” of family law emanates from lawyers disputing with each other over minor and often secondary issues in order to flesh out their fat legal bills with make-work projects.  They feast and gorge on self-created conflicts, often against the interests of their own clients, in endless pissing contests. The family law bar often mistakes aggression for competence. They win even when their clients lose.

The crisis in the family law system stems fundamentally from an underfunded legal aid system and monopoly control by lawyers whose fees now are edging towards $500 an hour. Busting the monopoly and adequately funding legal aid will help those now being victimized by the system. Additional measures, however, are needed. Hiring more judges will slash endemic adjournments, dramatically reducing unnecessary attendances and legal fees.  Rewriting the Family Law Act in simple language will add clarity and predictability and end the stream of lawyers’ legal gobbledeygook that now interminably clogs the neural arteries of judges.  Increased funding of legal aid clinics already existing in the family courts, expanding them and staffing them with legal workers—not necessarily lawyers—authorized to make court appearances will help relieve the confusion and delay caused by self-representation.  They could even make effective self-representation a possibility.

However, these measures will also result in a vast reduction of family lawyers’ fees, introduce competition and provide affordable judicial access.  This is why they will never be instituted as long as the vested interests of lawyers dominate the family court agenda.

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