Even Divorce Lawyers Can’t Afford a Divorce Lawyer

It should come as no surprise to anyone that most Canadians cannot afford a lawyer. In fact, lawyers often joke that if they had to pay a lawyer, they too couldn’t afford it. Nowhere is this dilemma more obvious than in family courts.

It is now commonplace to see self-represented litigants dueling with lawyers in most of our family courts in Canada. In British Columbia a parent or spouse can apply for custody and child and spousal support in the Provincial Court, which is purposely “user-friendly”. The Provincial Family Courts across Canada have successfully implemented reforms including plain-language court documents that are readily decipherable by lay litigants. The judges in Provincial Court are accustomed to hearing cases without lawyers and graciously assist those who act for themselves.

However, to obtain a divorce or property division, the only venue is each province’s Supreme Court, sometimes called “Queen’s Bench”, a most inhospitable environment for in-person litigants.

In a 2011 survey of Ontario divorce lawyers, conducted by Professor Nick Bala of Queen’s University Law School, he found that 48% of 167 responding lawyers indicated they were seeing many cases with at least one lay litigant and more cases where at some point in the litigation, neither party had counsel.

As family law becomes increasingly more complicated, despite the Canadian government’s sensible introduction of both Child Support Guidelines in 1997 and Spousal Support Advisory Guidelines in 2006, there are minefields enough for lawyers, never mind those who are forced to act as their own lawyer.

Will a lay litigant understand that in calculating their income for the payment of child support they must consider and understand complex nuances such as the possibility of the exclusion of non-recurring income; the need to include all of their capital gains income in their calculation and not just the portion they see on page two of their tax return; and their ability to deduct business expenses, union or professional dues and carrying costs? I doubt it. Not all lawyers have figured it out yet!

But affordability is not the only reason litigants refuse to retain counsel. There is another group of litigants who believe they can handle their divorce case just as well as a lawyer can. This smaller segment often become serial litigators who, because it costs them nothing, bring multiple frivolous applications, although some would say that lawyers do the same thing! Often when offered pro bono counsel, they decline.

Problems abound for all involved in the family justice system in the wake of the impact of lay litigants. Judges who must ensure that justice is both done, and seen to be done, are at the centre of the dilemma. If they provide too much help for an in-person litigant, that litigant’s spouse will see it as an unfair advantage and often, the court Rules that govern court procedures are less stringently enforced when it comes to litigants with no lawyer.

As well, litigants that pay for their own lawyer often become disenchanted with their counsel when they see their lawyer “helping” their estranged spouse who has no counsel. Lawyers are bound to treat participants in the justice system with courtesy and respect, traits that are frequently misconceived as their lawyer being “too friendly” with their opponent. Fee-paying litigants resent their lawyer telling their spouse what the law is or how the court process works.

For lawyers the problems are multiplied. They must walk a fine line in dealing with an unrepresented spouse and must ensure that all communication with an in-person litigant is documented in writing, with no exceptions. Of course, their clients are even more unhappy since it is their clients who pay the bills for the extra time and effort required to work with a lay litigant.

Lay litigants have also been known to send abusive communication to their spouse’s lawyer and from time to time, report their spouse’s lawyer to the Law Society, a complaint which can cost a lawyer hours of wasted time to respond to the often ill-founded allegations.

Is there a cure? They say that recognizing a problem is the first step to solving it. Certainly,the issue can no longer be avoided. It has taken centre stage as a result of lawyers, judges, court administrators, law professors,lawmakers, and the Canadian public decrying the slow demise of Canada’s family justice system.

Lawdiva aka Georgialee Lang

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7 thoughts on “Even Divorce Lawyers Can’t Afford a Divorce Lawyer

  1. Many people are forced to act as their own lawyer because their former spouse has delayed, broken court orders, or abused the legal system to exhaust them financially in order to “win”.Often times, sadly but true, the lawyer is complicit in this battle. That type of lawyer needs to be reported to the law society and disciplined properly. Too often the old boys club protects the lawyers, whether they are the representatives of the litigant or the litigant themself. Frankly, the old boys club makes sure that they get what they want despite the apparent facade of justice being done.
    My experience with most divorce lawyers except for Ms Lang was that they are
    as much to blame for the financial woes of the litigants as the litigants themselves with their exorbiant fees and their drawing out of matters: they dont care if they take your last dime and your house. Divorce should be like alcohol, controlled and monitored by the government and because we all already pay income tax it should be a minimal charge for all those involved while the lawyers are paid by the government.

    1. Unfortunately, I completely agree with this comment, out of experience.
      It has been over two years and we are still battling over the dumbest things and I still never got my (dumb) bike lock or vacuum cleaner back, lol.
      And where is that Led Zeppelin DVD compilation? haha

      I was self-represented, a disaster against a naïve Justice and a semi-annually reprimanded evil lawyer—it is surprising how much anger can seethe into people’s actions.
      I guess it is good for me to express this; a little catharsis, but still, it has been so ugly.

      Do people really need to lie saying the other person is lying and then get away with it? Are these fallacies and manipulations really this common? Apparently.
      I learned that this rough n tough lawyer has done the exact same thing to others, those others attended the latest two-day citation hearing of said counsel.

      So we take 5 mortgages, go broke or even bankrupt, feel crummy but at least—
      I have a wonderful daughter who loves me more each day that I see her….she is my priceless freedom from the pains of separation.

  2. Some strategies that are working in the U.S to help those without lawyers when they are in court without a lawyer include:
    1. Changing forms and instructions in plain language–here is a library with templates for many types of communication with members of the public: https://sites.google.com/a/lawny.org/plain-language-library/consolidated-library-example

    2. Using uniform forms across a state, rather than having different forms, courthouse by courthouse, county by county, city by city.

    3. Setting up a continuum of assistance that starts with triage and ends up with identifying those who have cases proper for self help and can do so, and then representation for those who need higher levels of interview.

    4. A model out of Ontario, is the self help center run by PBLO, where with a small staff, pro bono lawyers, and technology (including guided online interviews). http://www.lawhelpontario.org/

    5. A blog that covers self represented issues, models, evaluations and outcomes is http://www.accesstojustice.net

    The number of self represented will only continue to raise on both sides of the border. Addressing these needs require creativity and innovative approaches and maybe a dialog to share ideas and resources that work and can be adopted.

    For full disclosure, I work at Pro Bono Net, on the national online document assembly project for the US LawHelp Interactive. PBLO uses LawhHelp Interactive forms to assemble over 200 forms per month. Those interested in learning more about online document assembly for self represented litigants, visit http://www.probono.net/dasupport.

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