In a sinking economy, few can afford family lawyers
Before COVID-19 ever entered our collective vocabulary, family law litigants struggled to get help in what many described as an access-to-justice crisis.
Now that access-to-justice crisis is colliding with a public health crisis: the COVID-19 pandemic.
For example, says lawyer Sharon McKim-Ryan, since supervised access often occurs in a public place with a social worker, some parents may not have even seen their children during the pandemic.
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“Some parents have agreed that it would be best for the children to remain in one household during the pandemic,” says McKim-Ryan of Relationshift Family Law in St. John’s, NL. “Some parents who are frontline workers have made the difficult decision to place their children with grandparents.”
These decisions, of course, were being made with courts in various states of closure — but they nonetheless generated what Ontario law firm owner Vanessa Lam calls an “explosion” of case law related specifically to family struggles during lockdown.
Over the past decade, family law already represented about half of all civil court events, according to research compiled by the Canadian government. As courts reopen, McKim-Ryan says, there’s likely to be an increase in applications to vary child support, with many parents out of work, and there could also be an increase in applications to vary parenting plans, if parents have moved to different working schedules.
“Not only will courts have to reschedule all of the matters which were cancelled, courts will also have to process new applications,” says McKim-Ryan. “Prior to the pandemic, the courts were overburdened. This is only going to be exacerbated.”
Unfortunately, while the courts begin to re-open, many families’ economic struggles remain: The International Monetary Fund suggested in April that “the global economy will experience its worst recession since the Great Depression.”
Before the pandemic, inability to pay was already the leading cause of self-representation in family law, according to Canadian Forum on Civil Justice. If more families are litigating and there is less money to go around, they may choose to cut costs by representing themselves, lawyers say — especially if the jurisdiction lacks lower-cost options such as unbundled legal services, paralegals or unified family court.
Zoom decreased costs — no more five-hour drives to and from Vancouver, no more waiting in the courthouse for hours for a complex chambers meeting, says Cristen Gleeson, a partner practising through a law corporation at Baker Newby LLP in Chilliwack, B.C. On the other hand, an increase in self-represented clients could have the opposite effect, says Gleeson, who says she has been on cases where trials dragged on from three to six weeks as the courts helped self-represented litigants.
“It’s just extremely insurmountable for the other party who has a lawyer, because the legal bill is very high,” says Gleeson. Add in the R. v. Jordan impact — bumping criminal cases to the top of the docket — and Gleeson says a substantial backlog can form in the best of times.
“Already in British Columbia without the COVID-19 shutdown . . . about 80 per cent of family law trials were being adjourned the week prior by the case manager.’”
Riley Gallant, a lawyer at Latitude Family Law LLP in Edmonton, AB, says that there are other challenges as well: A triaging system at legal aid and modified court procedures that could further confuse self-represented litigants.
“I think people who probably otherwise would be pursuing a separation . . . are just waiting. I think that will contribute to quite an influx,” says Gallant.
“I have had some people talk to me about wanting to retain a lawyer and say, ‘I would have no problem paying for it once I'm back to work, but I'm just not working temporarily.’ . . . I think lawyers are being a little bit more flexible.”
In Ontario, Thunder Bay lawyer Tim Henderson says more funding is needed for legal aid, legal clinics and duty counsel focused on domestic violence issues, with many women trapped at home with abusers and unable to afford lawyers.
One province that may offer lessons for the rest of the country is Manitoba, where, as of May, court dates had already been rescheduled and a new flow of proceedings requires less upfront time in a courtroom, says Laurelle Harris, who practises through a law corporation at Harris Law Solutions in Winnipeg. The province is also focusing heavily on increasing use of mediation and arbitration, and the judiciary recently held a Zoom meeting to answer questions from more than 100 family lawyers, says Winnipeg lawyer Robynne Kazina, a partner at Taylor McCaffrey LLP.
“Providing free mediation, or even on the sliding scale, is really important,” says Kazina.
COVID-19 saps courts, economy
6.2% - Estimated contraction of the Canadian economy amid COVID-19, according to IMF
22% - Rise in domestic incidents in Ontario’s York Region during pandemic
50% - Portion of civil court events that are historically family law related
64% - Or more parties were self-represented at the time a case was filed from 2011 to 2012, according to researcher Julie Macfarlane