The Impact of the Lack of Legal Aid in Family Law Cases
Impacts of limited or reduced family legal aid funding
Self-representation and family justice system impacts
There have been significant increases in self-representation in family proceedings in Canada over the past two decades. This is concerning because self-represented litigants, especially those with vulnerabilities due to limited literacy or education, family violence or other factors, often experience worse outcomes in terms of obtaining support and protection for themselves and their children. The concerns arise not only because of the effects of lack of representation in court hearings, but even more in cases that are settled without an active judicial role. Restrictions on access to legal aid, the cost of legal services and the limited financial resources of litigants are significant factors in the increase in self-representation (Birnbaum & Bala, 2012; Birnbaum, Bala & Bertrand, 2013; Birnbaum, et al. forthcoming; Dandurand & Jahn, 2018; Flynn & Hodgson, 2017; Macfarlane, 2013; Sarophim, 2010; Thompson & Rierson, 2002; Zorza, 2009). The increase in self-representation and cuts to legal aid impose significant resource costs on the family justice system, thus negatively impacting the efficiency of the family justice system.
Birnbaum & Bala (2012) surveyed 335 Ontario lawyers at a family law educational conference about the reasons litigants choose to self-represent. The lawyers reported a 44 percent increase in self-representation in the previous five years. While the reasons for this increase are complex, the lawyers identified the inability to afford a lawyer (79%) and not being eligible for family legal aid (96%) as the major reasons. The lawyers also expressed, “concern that when the other party has no lawyer, this increases the costs for the represented party” (p. 108).
Birnbaum, Saini & Bala (2016) surveyed 67 lawyers representing children, 45 clinical investigators at the Office of the Children’s Lawyer, as well as 93 judges in Ontario about their views and experiences with self-represented litigants in disputes about children. The majority of respondents in all three groups reported an increase in self-representation in the previous five years, and a consequential increase in the length of the proceedings, as well as a decrease in the likelihood of a settlement that meets the interests of the children. When asked about the average dollar amount to the Office of the Children’s Lawyer (i.e., the government) as a result of a party being self-represented, the lawyers reported an average of $900 in added costs. Judges also reported the challenges that they face in dealing with self-represented litigants, and the added costs to the justice system (i.e., the government) as they have to provide additional assistance to the self-represented litigant and the length of proceedings is increased. As observed by one judge, “[I] explain relevant documents to be exhibits – enormous time, weaning out irrelevant docs and encouraging consent to obvious joint documents and encouraging the production and filing of relevant needed documents” (p. 130). In the Cost of Justice project of the Canadian Forum on Civil Justice (2018), the authors noted:
“We know that when people show up in court or at a court services office, it typically takes significantly longer to service someone who is self-represented as opposed to someone who has a lawyer. That’s just a matter of fact. Lawyers have the training; they have the experience; they get how the system works, whereas everyday Canadians don’t. … That’s just one example of how supporting individuals leads to benefits, and specifically, cost savings to the system.”63
The lack of (full) legal representation can jeopardize the goal of access to justice in several ways. First, equality before the law for individuals may be at risk if one party has access to legal assistance and the other does not. Second, a legal aid funded lawyer may have a limited amount of time to devote to a case, which impacts their ability to resolve complex family disputes. This is particularly concerning in family violence cases where multiple interviews may be required to allow the client to feel safe enough to disclose abuse in the relationship (Birnbaum et al., 2014). Third, some vulnerable groups (e.g., those with low literacy or other communication challenges) require more time to process information and may require face to face contact which may be affected by the number of hours legal aid is available (Elman & Hughes, 2013)
Governments and courts have responded in a range of ways to assist self-represented litigants, including providing more information online, simplifying court processes, providing judges with guidelines on assisting them in court,64 and training court staff to support self-represented litigants (Birnbaum et al., 2018).
Financial and emotional impacts on litigants
The Cost of Justice project of the Canadian Forum on Civil Justice (2018) examined the short-term financial, physical and mental impacts experienced by people struggling with legal issues. According to this study, 82 percent of people who reported trying to solve a family law dispute experienced a “related health or social problem.” The principal investigator on that study, Prof. Trevor Farrow of Osgoode Hall Law School, observed:
“We know from some studies around the world that getting legal help leads to better results for people in different contexts….We also know from emerging research … that investing in justice typically pays off multiples of the investment in terms of benefits. What we want to do is add to that cost-benefit analysis by looking at actual clients receiving actual legal interventions and following those people over a period of time and getting a sense … if their lives were improved because of the intervention and, if so, how. And that would include qualitative well-being, qualitative impacts, and also quantitative [impacts], including cost savings and cost benefits.
I think it’s a false economy to say that saving money on justice to put it elsewhere in the system is a good idea. What our research demonstrated, and what some of the early research around the world is showing, is that … every dollar you spend on justice typically bears significant amounts of fruit and significantly more than the dollar put in. What we ultimately really need to do is start persuading those who hold the purse strings that … justice needs to be invested in. At the moment, it is significantly underfunded, and we will be collectively way better off if we adequately fund it. It will actually save us money in the end in terms of housing costs, medical costs, social assistance costs.”65
In addition, the lack of or limited family legal aid results in some low- and middle-income persons not pursuing claims in the court system (Hughes, 2013). Others may choose “informal methods” to resolve a dispute (e.g., religious leaders serving as decision-makers or community mediation), which may also result in the loss of legal rights or exposure to harm. Other low- and middle-income persons may self-represent out of necessity, not choice; and as a result, may have great difficulty in achieving fair, just and protective outcomes. Such outcomes may lead litigants to experience greater and longer-term impacts (e.g., financial, physical and emotional).
As stated earlier, it is vitally important to know the human costs (e.g., socio-emotional, health, employment, and housing) for adults and children in addition to the financial costs of not being able to access legal aid in family disputes. While there has been empirical research on the impact of self-representation as a result of lack of legal aid assistance, there needs to be a comparable examination of the impacts on vulnerable and marginalized communities. The Civil Forum will be undertaking a small one-year study starting in 2020 on the effects and costs of access to justice problems on Ontario Legal Aid Clinic clients, but it will not focus on family law concerns.66
63 “Researchers to follow legal aid clients for year-long access to justice research project,” July 10, 2019, Lawyers Daily.
64 See judicial statement of principles for self-representation at: https://www.cjc-ccm.gc.ca/english/news_en.asp?selMenu=news_2006_1212_en.asp (accessed June 17, 2019).
65 “Researchers to follow legal aid clients for year-long access to justice research project,” July 10, 2019, Lawyers Daily.
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