Does breaking up have to break the bank? How our alumni—and students—are changing family law
By Cynthia Macdonald / Illustration by Patrik Svensson
From the Spring/Summer 2014 issue of Nexus
When Catherine Lemieux’s relationship ended and she was deprived of her children, she had no idea she’d end up representing herself in court.
But unable to afford a lawyer, she realized she’d have no choice but to go it alone. “I would rather have solved it amicably, but that wasn’t a possibility in this case,” says the mother of two, who is currently completing a PhD in religion at the University of Toronto. “I found myself forced into the legal system, and it was very scary.”
Lemieux initially borrowed money to retain a lawyer, but in the course of time that money ran out. Over the next four years, she and her former partner appeared before a dozen judges, resulting in six volumes of court documents. “You figure out how the filing works, what the basic rules are. I wasn’t always composed and professional,” she says wryly.
In the end, she received a satisfactory outcome and was permanently reunited with her kids. “But I don’t necessarily advise other people to go through it,” she says of self-representation. “Their case might be very different than mine.”
Other people, however, do go through it. Depending on the jurisdiction, more than 70 percent of litigants in family law cases can be self-represented. Couples who can’t agree on custody or finances naturally turn to the traditional family justice system as a last resort for help. It’s an experience that can be a financial nightmare for those who aren’t wealthy.
Few litigants qualify for legal aid, but neither can they afford to pay a lawyer hundreds of dollars an hour. Consequently, many end up representing themselves—an arrangement that has contributed to a massive court backlog, as judges routinely attempt to explain rules of procedure to people with no formal legal training.
“Family law is in crisis,” says veteran practitioner Phil Epstein, LLB 1968, co-founder of Epstein Cole LLP, “and not just because of self-represented litigants. There’s a lack of resources in terms of courtrooms, judges, mediation facilities. By its very nature, family law requires early intervention and there aren’t enough services to provide that.”
These crises are of long standing, and not restricted to Canada alone. Jurisdictions around the world have sought different ways to deal with the problem: from mandatory pre-court mediation in Britain, to government-funded “family relationship centres” in Australia.
In 2013, the Report of the Action Committee on Access to Justice in Civil and Family Matters, chaired by Supreme Court Justice Thomas Cromwell, recommended more than 30 ways in which the system could be changed. These included having a specialized family court, increasing legal aid, and extending the unified family court system across the country. But such changes require financial resources and political will at both federal and provincial levels—something that’s been lacking for a very long time. “I’m not optimistic that any present government is prepared to do what’s necessary,” says Epstein wearily.
So without adequate government support, today’s family lawyers find themselves in a perpetual state of innovation. Where possible, they’ve reduced society’s reliance on the old, combative divorce model, due to the financial and emotional costs it invariably exacts, most particularly on children. Various forms of consensual dispute resolution (CDR) have taken the place of this model, including mediation and arbitration. This century has seen an especially strong rise in collaborative family law. In this process, each party is represented by a separate lawyer, and all four sign an agreement at the outset that negotiations will be conducted outside the courtroom.
But while such welcome trends keep divorcing couples from taking up court space, they’re still too expensive for many middle income clients. In fact, they’ve resulted in what former Chief Justice of Ontario Warren Winkler called in 2011 a “two-tiered” justice system—those who can, seek arbitration and those who can’t, sit and wait for their day in court to represent themselves.
And justice isn’t usually on the public’s radar until a crisis affects them personally. So while some argue that access to justice is a core part of fundamental rights, many focus their concerns on inequalities in health care and education, while overlooking those in the legal system. (The Faculty of Law highlighted this access to justice issue, and proposed solutions, when it launched the year-long Middle Income Access to Civil Justice Initiative in 2010, which included family law.)
‘Unbundling’ is now part of the legal lexicon
Yet there may be another reason, in addition to the cost, in the staggering rise in self-represented litigants: the “do-it-yourself” culture that’s arisen in the wake of the Internet.
“We have a culture of people who are used to doing things on their own,” says former family lawyer Nikki Gershbain, LLB 2000. “We fill out our own tax returns, write our own wills, and buy or sell our own houses without an agent. Now on the one hand that’s an amazing thing….but what worries me in this context is that family law is highly specialized. It’s not something lawyers dabble in; most lawyers who practice family law only practice family law. So people would really benefit very much from the advice of someone who knows what the law is, and how to get them through the system.”
Jonathan Kline, JD 2007, a family lawyer practising in Toronto, also points out that the DIY culture has given rise to a great number of self-employed individuals, whose complicated financial picture can present messy exceptions to the government’s support guidelines.
Even with the limited on-site help provincial governments have provided for “self-reps,” such as duty counsel or a series of Family Law Information Centres, litigants can get frustrated by the lack of depth and continuity these services offer.
Sharon Silbert, JD 2009, a CDR specialist based in St. Catharines, Ontario, provides on-site mediation as part of her practice and hears the frustrations about the provincial services on a regular basis. “People tell me that they can’t ever get the level of assistance they need, because their interactions with these people are so brief. [The service providers] are never going to be in a position to fully understand what’s going on in the case, or be able to provide more than snippets of information.”
That’s why some lawyers now offer “unbundled” or partial services to clients who don’t wish to pay for full retainers. “The introduction of the Internet, combined with runaway legal costs, have contributed to more people deciding to purchase unbundled legal services,” says Epstein. “What you’re going to see in the future is a dramatic increase in these services.”
Rather than assuming responsibility for every aspect of the case, the unbundled lawyer acts as a sort of legal coach for his or her client. Kline is an enthusiastic proponent of unbundling, using the word “tailored” to describe his own downtown practice. “I try to treat each case as brand new,” he says, “Every situation is different, and a new strategy is always required.”
And yet, unbundling is still very much a grey area. “What I’ve envisioned with it, and what I’ve actually done, have been very different,” Kline says. He worked with one client who only wanted to pay for certain services until the case became too complicated, at which point they switched to a more traditional retainer. Providing informal pro bono advice is one thing. But to be partially on the record and partially not is a tricky area. “It’s so hard to do halfway.”
Still, if an efficient unbundling model can be worked out, Kline is in favour of it: it puts the client in the driver’s seat of his or her own case, and is very cost-effective. “As long as the client knows that, at this point, what they’re getting into is experimental,” he adds.
Silbert also hails the advent of greater client participation in family law. “With respect to handling complex legal issues, people may not be able to handle things on their own. But at the same time I question the assumption that a third party, such as a judge or even a client’s own lawyer, is going to be in a better position than clients to say what’s best for them. Clients are the ones whose lives are being turned upside down; they’re going to have to live with the outcome. So doesn’t it make sense that they take more of a role in determining what that outcome is?”
Family lawyer Jason Murphy, LLB 2002, who practices law at Christie/Cummings in Collingwood, Ontario, is strongly considering unbundling. He thinks it could be an empowering solution for intelligent, motivated clients. But he notes it could also be a potential minefield. “We’re giving advice, but we don’t have the same control over the implementation,” he says. “So from a liability perspective it’s scary, especially if you’re a small practitioner.”
Will the advent of unbundling mean that family lawyers earn a great deal less money? Not necessarily, says Murphy, especially if the practice attracts a large number of self-represented clients who otherwise wouldn’t be paying lawyers anything at all. “For me it all starts with happy clients, who are going to spread the word that they got helpful advice,” he says.
Murphy adds that in the current environment, clients paying full retainers to their lawyers are also suffering court delays. “We’re doing them a favour as well by thinking outside the box, because we’re making the system more efficient.”
The unbundled services model reduces, but does not eliminate legal costs: it has the potential to serve many but not all clients. Litigants who live in poverty, have very complicated cases, or who experience barriers related to language or mobility still need effective representation and often cannot get it.
Kline frequently sees cases where one side can afford a lawyer and the other cannot; the power imbalance, he says, is the real injustice. Realizing how limited their options are, many people actually give up entirely on seeking redress and merely “lump it,” settling for unfair solutions to their custodial or financial problems.
Bring in the students
Seventeen years ago, however, a radical new solution to this problem came into being: leveraging the talents of Canadian law students. The award-winning Family Law Project of Pro Bono Students Canada (PBSC) began in response to a 1997 speech by Ontario family court judge Harvey Brownstone, who suggested that students were a valuable resource that could be tapped to alleviate some of the problems he and his colleagues were experiencing.
These days, the Family Law Project annually recruits some 160 law students across the country. Working under the supervision of family lawyers, they help clients draft legal documents and navigate the complex family court system. The program has been such a success that Brownstone himself has said that Toronto’s North York court would “implode” without the presence of PBSC volunteers.
PBSC itself was founded at the University of Toronto in 1996 by then-dean Ron Daniels, LLB 1986. It now operates chapters in 21 law schools in Canada. In addition to the Family Law Project—its biggest—the organization gives approximately 1500 additional students the chance to work in other areas of the law, whether in courts, tribunals or community services.
“While Canadian lawyers have always done pro bono on an ad hoc basis, it wasn’t until Ron Daniels—with the support of the Law Foundation—created PBSC, that organized pro bono programs were introduced in this country,” says Nikki Gershbain, the group’s current national director.
So too did the Faculty of Law’s Downtown Legal Services step in to help, with the addition of a family law division in 2005. Last academic year, 19 DLS students assisted 55 family law clients, either as volunteers or for a course credit, says executive director Lisa Cirillo—and those numbers are expected to increase, thanks to additional funding from Legal Aid Ontario to upgrade the supervising staff lawyer position to full-time.
While the American Bar Association requires law schools to provide pro bono opportunities for students, no such obligation exists in Canada. In fact, Gershbain says, even today pro bono isn’t universally supported by the legal profession. Despite decades of underfunding for legal aid programs, some advocates continue to worry that the delivery of pro bono services could prompt governments to shirk their own responsibilities to underserved litigants.
But governments weren’t stepping up. In her sunny office in one of the rambling old century homes that line Toronto’s Queen’s Park Circle, Gershbain seems a long way from the cool precincts of traditional family law where she started out. With fewer than five staff, PBSC is most decidedly a shoestring operation, but one whose members exude passion and purpose. “I love my job!” Gershbain declares.
PBSC offers rigorous, on-the-job training to students, as well as the opportunity to make contacts in the working world. And for the past three years, they’ve had a waiting list of 700 students.
“PBSC can’t keep up with the demand for our placements or for our services. Seven hundred students on a wait list is 700 fewer lawyers exposed to the value of pro bono, and 700 fewer opportunities to support vulnerable people in our communities,” says Gershbain. “I know all the Canadian law schools value their involvement with PBSC, and our goal is to one day be able to offer these learning opportunities to every law student who wants a placement.”
The program also appears to be creating what Gershbain calls a “cultural shift” in how students perceive their careers. “Our surveys show that 80 percent of students plan to do pro bono work after they graduate, which is amazing,” she says. “When I was a student, it never would have occurred to me to ask if I could do free work. Now students ask all the time. If every lawyer took that professional obligation seriously, we could have a large impact on filling the gaps.”
Clearly, Gershbain wants all interested law students to take advantage of her program. Unfortunately, PBSC is in the midst of a funding crisis. Her former boss Phil Epstein is currently chair of a $650,000 campaign to keep it going. “This program helps the public, it helps the court and it helps the young lawyers who are involved,” he says. “It’s a win-win-win for everybody concerned.”
The lead supporter of the campaign, he’s had success encouraging fellow family lawyers to donate. “We’ve had some outside help as well, but it’s primarily lawyers who are stepping up to the plate and in some cases making a significant contribution. It’s good to see they support the cause and are willing to see the program grow.”
Gershbain knows that PBSC and other pro bono organizations can’t solve the problem on their own; they help, but never as much as is needed. “As the Cromwell Report has noted, there has to be a comprehensive and holistic response to this problem,” she says. “If we’re really going to address it, government has to step in and we have to look at this issue systemically, not just at what stopgap measures we can put in place.”
Family law remains one of the most challenging areas of the bar to work in. Administrative headaches aside, its stresses are unique and profound: emotions run high and society’s most vulnerable citizens—children—are very often involved. Though the field is becoming less adversarial, it still suffers from an image problem: a recent study of student perceptions of family law was titled “Not with a ten-foot pole”.
But those who do practice find it uniquely energizing, despite the challenges. “A family law proceeding is usually the most important interaction with the law that people will ever have, so the stakes are high,” says Murphy. Silbert agrees: “Family law is where the law intersects with real people in their day-to-day lives. It’s something a lot of people are going to face.”
And while some of the lawyers interviewed for this story stressed that the only way of truly solving these problems would be through prevention—changing society's overly romantic notions of marriage, and teaching children better conflict-resolution skills to prepare them for it—they also admit to the utopian nature of such solutions.
Until then, “people are always going to get divorced, and no-fault divorce is pretty much a value that we share. So what can you do?” says Gershbain.
Not everything, but quite a lot, as the creative and iconoclastic new breed of family lawyers is proving every day.
