How to improve an unjust court system
TheStar.com – Opinion/commentary – Lawyers and judges fight to maintain their stranglehold over a justice system that is failing Canadians.
May 17 2013. By: Carol Goar
No one plans to go to family court. But life takes unexpected twists. A couple’s marriage hits a rough spot. Tensions build, destabilizing the children and driving away friends. At some point, divorce becomes the only viable option.
Suddenly, what was personal becomes legal. The estranged partners have to sever their relationship, divide their assets and determine who gets custody of the children.
And what was legal soon becomes financial. The typical hourly rate for a family lawyer in Ontario is $350 to $400. Most people gulp and pay, thinking their case will be settled quickly. But complications arise, more documents are needed, the proceedings are delayed, the presiding judge changes. Approximately half of family court litigants run out of money and wind up representing themselves.
For about 10 per cent, it’s an intellectual challenge. For the rest, it’s an emotional nightmare.
The number of self-represented litigants in Canada’s family court system has ballooned in the past decade. In Toronto, three out of four people who appear in family court today are without legal counsel. They have to do everything themselves — from downloading court documents to proving their fitness to raise a child.
Judges can be acid-tongued. Court officials can be unhelpful. The paperwork can be overwhelming.
Julie Macfarlane, a law professor at the University of Windsor, interviewed 283 individuals. Their accounts and her research convinced her that Canada’s justice system is badly out of the step with the times and the needs of the people it purports to serve.
The trouble is the two best solutions — a reduction in lawyers’ fees and an expansion of legal aid — aren’t going to happen anytime soon.
So Macfarlane and her research team came up with a list of recommendations that would make the current justice system fairer, easier to navigate and less rigid.
The government could write the forms litigants must fill out in clear, comprehensible language. Macfarlane assigned a member of the team to complete Ontario’s supposedly user-friendly forms. The third-year law student was bewildered by some of the terms and couldn’t understand what “supporting documentation” was being requested.
The Law Society of Upper Canada could allow licensed paralegals back into the practice of family law. It barred them six years ago. Loosening the prohibition would offer litigants an affordable alternative to get their documents prepared and their cases ready.
Lawyers, court officials and legal aid workers could steer more people toward mediation. Many of the litigants in Macfarlane’s study were never offered that option.
Law firms could unbundle their services, allowing clients who can’t afford full-service packages to buy the types of assistance they needed most.
The Canadian Judicial Council could investigate complaints about inappropriate behaviour on the bench more seriously. Denigrating a litigant who can’t afford a lawyer is not only rude, it militates against a fair trial.
Courthouses could offer orientation workshops so litigants would know what to expect, how to address a judge, what court terms mean and what to bring to their trial. In addition, they could provide on-site photocopying and downloading for a nominal fee.
Scheduling officials could ensure that one judge — not a succession — handles a case from start to finish.
Large population centres could set up special courts for self-represented litigants. They would allow judges who were willing to do some coaching from the bench to develop a specialty and would provide an alternate model of justice for incoming judges.
None of these proposals would solve the fundamental problem: courts guarded by a coterie of powerful professionals.
But they would make life easier for people seeking justice in a system that treats them as bothersome amateurs.
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