The high cost of family law legal services and need for change | Tom Dart

By Tom Dart

Law360 Canada (December 1, 2022, 2:36 PM EST) --
Tom Dart
Tom Dart
Much has been written about self-represented litigants. One of the reasons advanced for self-representation is that the average person can’t afford a lawyer. I have no doubt that this is in fact true. Lawyers are often blamed, of course, but the reality is the problem is systemic, starting with the law itself. This series is meant to open the door for further discussion and is designed to provoke some conversation about why people face such a high cost within our justice system.

1. The cost of properly preparing a family law case for litigation or for negotiation:

a. The current law is complex and not easy for the average person to understand. It takes time to educate a client. Lawyers need a working knowledge about every aspect of the human enterprise and, most importantly, when to ask for expert assistance.

b. There are innumerable facets to a family breakdown, not just legal issues. How can people going through a traumatic emotional time function as normal human beings? Clients have difficulty focusing on the legal issues — resolution of emotional issues often have priority from their perspective.

c. The first step in any case is to ensure that all of the relevant facts and information are obtained. This takes a lot of time and effort. Professional responsibility requires the family law lawyer to investigate at a minimum:

i. All of the facts relevant to the rearing of children;

ii. All of the facts relevant to the standard of living enjoyed by the family during cohabitation;

iii. The chronological history of the marriage — from dating to now, where the parties lived, what employment they held, what assets and liabilities they had at the date of their marriage or cohabitation, what they had on separation, what they have now.

iv. What was the relationship like — was it abusive? What role did each partner have in the relationship?

v. Did the parties share financial information? If not, how do we obtain full disclosure from both parties?

d. What are the individual goals of our client in all aspects of what they are facing?

e. Our legislation adapts a wealth-sharing model. Thus, we are dealing with values of assets, not necessarily ownership issues. There can be literally as many valuation issues as there are pieces of property owned by the parties.

f. Experts are usually required to value assets, particularly a business or other special asset. In addition, in this world of self-employed individuals, experts are often required to determine income for support purposes. The law has a fairly complicated set of rules to follow when determining income, beyond the expertise of the normal person. Experts’ fees for these valuation and income determination problems will run into the thousands of dollars in addition to legal fees. We often have competing experts at additional cost.

g. If the parties can’t agree on a parenting plan, then many hours of preparation are required to fully present a case for a client. The other problem is that parenting occurs every day and the factual basis for a parenting case often changes in mid-stream depending on unfolding events. The lawyer has to keep up, often daily, with those changes.

2. Family Law Rules

a. These rules stipulate what documents you need to prepare to start a court application, all of which are prepared at client expense. In addition to an application, you need the financial statement and a custody affidavit if children are involved.

b. The preparation of a properly documented financial statement by itself is very intimidating. To prepare it takes both the client and legal staff at least 10 to 15 hours to properly complete and document.

c. If pleadings are required, several more hours are required.

d. Within 30 days of starting your case you must complete a Certificate of Financial Disclosure.

e. The cost of getting a case ready to the point of commencing an application to our court is at least $10,000 plus expert’s fees, which are impossible to predict.

f. You can be required to provide further disclosure.

g. Often people do not provide full disclosure. Hours can be spent gathering disclosure from the other side. If you are diligent you can spend hours providing financial disclosure to the other side — all hours on top of your normal day.

This is part one of a two-part series. Part two: The high cost of family law legal services and need for change – part two.

Tom Dart, of Barriston Law LLP, is a family law lawyer, mediator and arbitrator. He is a member of the Ontario Bar Association and is past president of its family law section. Dart has been on numerous committees associated with reform of the family justice system. He has also written articles for presentation at seminars for the Canadian Bar Association and for other newsletters and periodicals in the area of family law.

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, 
The Lawyer’s Daily, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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