Family Law Issues Raised as Legal Aid Boycott Extended Throughout Ontario

As is not widely known outside the province of Ontario, experienced criminal defence lawyers here began a boycott of the legal aid program some four months ago by refusing to provide their services in serious cases and those involving “guns and gang legislation”.   They argue that legal aid compensation has risen by just 15% since 1987 while the cost of living has risen by 75% in the same period.   The highest rate a senior lawyer can now be paid is $97.00 an hour.

Hon. Chris Bentley, Attorney General of Ontario

Hon. Chris Bentley, Attorney General of Ontario

The expansion of the boycott to the last four remaining unaffected areas (Ottawa, Brockville and Halton and Niagara regions) involves about 700 experienced lawyers and comes just days after the provincial Attorney General, Chris Bentley, proposed an infusion of $60 million into the legal aid budget over the next four years.  (Ironically, Mr. Bentley was a vocal proponent of higher legal aid compensation when he was in criminal law practice himself.)

In proposing the additional funding, Mr. Bentley “[…] expressed a particular desire to help people resolve family law disputes through “collaborative and non-confrontational approaches.”

Mr. Bentley also endorsed a move to “block funding” for criminal cases – a method which allots set amounts to particular legal services, regardless of how much time they take to perform.

Now Sara Wunch, the chairperson of the Family Lawyers Association, has come out to declare firm opposition to block fees even though the Attorney General seems only to favour the method in criminal matters.  What is more,

Ms. Wunch also expressed skepticism about recent statements by Mr. Bentley that favoured putting more money into collaborative law and other methods of resolving family-law cases short of active litigation.

“This is not a new thing,” she said. “There are mediators in the family courts right now. If people thought that they could resolve their cases that way, I can assure you that nobody wants to take their matters to trial.”

One can hardly take issue with an organization “dedicated to the family law professional” as its website proclaims that comes out in favour of what it perceives to be the interests of its members.

What I do take issue with, however, is the statement that “if people thought … they could resolve their cases [through mediation and other collaborative methods]”, they would not litigate because “nobody wants to take their matters to trial.”

There seems to be a great ambivalence in attitude among many family law disputants.  On the one hand, many seem very reluctant to litigate because of financial and emotional costs as well as time delays.  At the same time, though, there often appears to be the wish to have their ‘day in court’.  They seem so firmly convinced that their position is just and fair, any court would be bound to agree with it.  This is more often than not very fanciful thinking.  In any case, it’s not that collaborative dispute resolution is nonviable so much as it is the wish to have a position vindicated (at the expense of the other party’s) in a public forum.  Also of importance here is that family law disputants are not specialists in this area and are often not at all knowledgeable about the various approaches open to them to deal with marriage breakdown in Ontario.