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

By Tom Dart

Law360 Canada (December 5, 2022, 11:53 AM 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. While lawyers are often blamed, the reality is the problem is systemic, starting with the law itself. In part one, I examined 1) the cost of properly preparing a family law case for litigation or for negotiation, and 2) the family law rules.

Part two continues the discussion.

1. Family Law Practice Directions

a. Most recently, our practice direction says that where it conflicts with the Family Law Rules, the practice direction prevails.

b. The practice direction notes and I quote:

i. “Counsel and parties can generally expect to attend the following court events with a judge prior to trial: one case conference; one settlement conference; one trial scheduling conference; and one trial management conference. In exceptional cases, a judge may schedule additional conferences or combine some of these conferences into one event, as permitted by the Family Law Rules. If a judicial decision is required prior to trial, parties may also schedule a motion as permitted by rules 14(4) to (16).”

c. Each of the above events according to our Rules requires updating of a financial statement if it is more than 30 days old. Attendance at these events is also like attending an emergency room at the hospital — you wait your turn as you are on a list of people with the same need. The average cost of each event to the client therefore becomes anywhere between $4,000 and $7,500 times four, equalling potentially in excess of $30,000 and you are not yet at a trial. The cost of all the steps required by the practice directions is thus extremely high.

d. A trial usually requires two days of preparation for every day of trial. A day of trial and a day of preparation are usually equal to eight hours per day when all time is accounted for. So, at 24 hours per day, at say even $300 per hour equals $7,200 per day of trial. The average family law trial is five days, which equals another $36,000. (Most experienced trial counsel charge in the range of $500 per hour.)

e. If you add in a motion, the cost will depend upon the number of issues to be dealt with on the motion, but you can expect to spend no less than $15,000 on a motion.

2. Summary

a. All of the above applies only to the “average” family law case. Some might be a bit lower but not by much. Many are much, much higher if the conflict is intense and the issues many.

b. So the final average cost of the “average case” which goes all the way to a trial disposition is in the range of $96,000, not including one motion and not including expenses such as expert’s fees, fees for serving documents, fees for printing and copying documents, and many other out-of-pocket expenses.

c. If the average person is lucky, after a trial, they might be out “only” $100,000, but only if they don’t have to hire any experts.

So how do we change all of this? Can we at least start a conversation with all the stakeholders — the politicians, the judiciary, the lawyers, the administration, but most importantly, the clients?

At the same time, the client has to expect the cost of negotiating a settlement or going to court is going to be high. This is because the law is complicated and there are many areas of uncertainty with respect to outcomes should the matter proceed to court. So much depends upon the facts and so often facts are very much in dispute. How do we reconcile and resolve factual conflicts more efficiently?

We do know that the private sector can deliver mediation and arbitration services at an acceptable cost to the client. People who can afford it often opt out of the court system. Can we import what works there into the court system?

Is it time to rethink our “horizontal” approach to case management? How do other jurisdictions manage case loads? What works for them and what does not work?

What is the role of each of the stakeholders (judges, lawyers, experts, etc.) and how can their role be improved?

Is the adversarial model the best model for family dispute resolution?

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

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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