Update: see previous post – April 11/16 Ontario: Justice Delayed is Justice Denied
Windsor law professor says more than half of family law litigants now in court without a lawyer
A few years after her divorce, Jana Saracevic owed her lawyers more than $100,000. She was still fighting her ex in court and had drained her savings and borrowed thousands to keep it up.
Tapped out, she found herself challenging her legal bill at a special hearing in Milton. Unable to afford counsel, Saracevic, like an increasing number of Canadians in her situation, chose to represent herself.
“I actually froze,” she recalled in an interview with the Star. “I was sweating, I was hyperventilating, I couldn’t speak … I had to fight against my whole body shutting down.”
The experience was part of a years-long nightmare dealing with immense legal bills and representing herself when she couldn’t afford them. Her divorce file finally closed last year, but she says she is still paying off that big fee she challenged (the matter was settled in mediation and she’s barred from discussing the result).
Saracevic is now an advocate for supporting people, like her, who must turn to self-representation in times of legal trouble. With legal fees on the rise—the most recent survey from Canadian Lawyer Magazine shows bills for civil and family cases have jumped markedly since the global recession — there’s an increasing number of people who can’t afford a lawyer, according to studies by Julie Macfarlane, a law professor and researcher at the University of Windsor.
“The number of people who are going to court without lawyers has gone up enormously,” Macfarlane said in an interview this week. “We know around half of the people that represent themselves begin with a lawyer. And they run out of money.”
Macfarlane added that, according to her research, more than 50 per cent of people going to family court this year will not have a lawyer.
Cole Webber, with the Parkdale Legal Clinic, said there is a wide swath of people who can’t afford legal bills, but don’t qualify for Legal Aid assistance. The threshold for eligibility varies depending on household size and whether your case involves domestic violence, but the general qualification limit is an income of $12,000 to $14,000 for a one-person household and $31,000 to $40,000 for a family of five or more.
“You basically have to be on social assistance to even qualify,” Webber said.
Macfarlane agreed, and called it an impediment to universal access to justice.
“This isn’t any longer, ‘there’s a group we have to assist because they’re the poor and vulnerable.’ It’s most people, and it’s certainly the middle class,” she said.
Her ongoing study, called the National Self-Represented Litigants Project, consists of hundreds of interviews with Canadians who have chosen to forgo paying a lawyer so they can shepherd their own cases in court. She said she’s gathered that people seem to feel more entitled to challenge legal bills than in the past, based partially on what she believes is a cultural shift toward more willingness to challenge authority.
Self-represented litigants have also told her they get “seduced” by what appears to be widely available legal resources on the Internet and believe they might not need to fork out the cash for a lawyer.
This may be a mistake, Macfarlane said. According to her research, between 2004 and 2014, 95 per cent of applications by a represented party to settle a court matter — called summary judgments — were successful against litigants without lawyers.
But the most common reason for self-representation is that people involved in lengthy court battles — whether it’s civil litigation or divorce drama — often don’t have enough money to foot their legal bills, Macfarlane said.
That probably won’t surprise you, given how average legal fees for a two-day civil trial in Canada jumped 43 per cent to $31,330, from 2014 to last year, according to Canadian Lawyer magazine’s most recent national survey. Hourly rates for lawyers with a decade of experience also jumped 12 per cent, the survey found.
This forces people to make difficult choices, Macfarlane said. People she’s interviewed frequently talk about how legal bills creep into the logic of their lives, sucking up resources and forcing them to contemplate cancelling vacations, taking out a second mortgage or closing the college fund for the kids.
“People start to make choices here. They just can’t go on paying,” she said.
Maia Bent, president of the Ontario Trial Lawyers’ Association, practises personal injury law in London, Ont. She said it’s not clear why legal fees change; many factors come into play, from inflation to office overhead. In her practice, she’s noticed that it’s costing more to hire medical and engineering experts to give opinions on aspects of her cases, spending that gets passed on to clients in the form of higher fees.
But regardless, she said, self-representation is an increasing problem in the legal system. “It’s unfortunate when people have to represent themselves,” she said, adding that schemes such as “contingency billing,” which involves withholding legal charges unless the lawyer wins the case, can help low-income people get legal representation. But that means the lawyer assumes the risk of losing the case and getting paid nothing.
“People who are shut out of the legal system because they can’t afford lawyers could enter into these arrangements,” Bent said.
Saracevic is hopeful things can get easier. Legal Aid recently started offering 10 free mediation sessions for divorcing couples — if one of them earns less than $50,000 per year — to avoid going to trial. And there are studies like Macfarlane’s to bring people together for support. Macfarlane added that better-trained court staff that can help people familiarize with the procedures of the system, including lawyers on hand who can help with “legal coaching,” could benefit people like Saracevic.
“We don’t know the procedures. The learning curve is steep. And it’s kicking our butt,” Saracevic said. “You need access to justice.”