Month: October 2019

The Global Access to Justice Project has formed the largest network of academics and researchers ever assembled in the field of access to justice to map the progress that has been made globally in access to justice since the 1970’s. That was when two landmark studies were carried out to examine the rapid spread of legal aid in North America, Western European and some Commonwealth countries up to the 1960’s and early 1970’s. An even more extensive global expansion of legal aid and a revitalized discussion about expanding access to justice has been occurring in recent years. The global Access to Justice study, now underway aims to contribute to the new discourse by examining developments that have occurred between the first expansion of legal aid, documented and examined by early publications, to the present. It is intended that the study will contribute by adding a historical and comparative analysis to the discussion of current issues and future development of access to justice. The project is being led by a co-ordinating team including academics and experts who helped to document early developments in the access to justice movement. The coordinating group includes Earl Johnson, Bryant Garth, Alan Paterson, Cleber Alves and Diogo Esteves. Earl Johnson, along with Mauro Cappelletti and James Gordley wrote the landmark study “Toward Equal Justice: A Comparative Study of Legal Aid in Modern Societies” (1975). Alan Paterson has been the chair of the International Legal Aid Group since the mid-1970’s and has occupied a central role monitoring developments and advising governments on legal aid. Bryant Garth, with Mauro Cappelletti, produced the influential world survey of legal aid known as the “Florence Access to justice Project” carried out in 1976-77.

The 1975 “Toward Equal Justice” study attempted to document and explain what was becoming an international movement to make legal aid available to all regardless of income. A few years later Mauro Cappelletti and Bryant Garth carried out the “Florence Access to Justice Project”, the landmark global survey of access to justice of the early access to justice era.  The results of this comparative research were published as the five-volume work “Access to Justice: A World Survey” (1978). In volume one of the Florence Project report, Cappelletti and Garth set out the very influential three waves model describing the evolution of access to justice. The first wave was the development of mechanisms to provide access to legal representation of individual interests. The second wave was the representation of diffuse collective interests. The third wave involved the development of a range of alternative dispute resolution approaches to resolving legal problems. In the years following this publication, scholars proposed further waves of access to justice to describe continuing developments such as the professionalization of legal ethics(a fourth wave), and the institutionalization of human rights protections(a fifth wave).

The Global Access to Justice survey includes more than 160 countries in the following regions: North America, Central and South America, the Nordic countries, Western and Central Europe, the Middle East, Northern Africa, Sub-Saharan Africa, Eastern Europe, Central Asia, the Asia-Pacific region and Oceania. The present study will include a greatly expanded range of topics compared with the earlier research. These include: the cost of resolving disputes within the formal justice system, contemporary initiatives to give representation to collective and diffuse rights, initiatives to improve the machinery of dispute processing, developments in civil procedure, developments in criminal procedure, alternative dispute resolution, simplification of law and by-passing legal procedures, changes in professional legal ethics, expansion of human rights, new technologies for improving access to justice, sociological approaches to addressing unmet needs, cultural dimensions of the access problem, learnings from First Nations peoples and, developments in legal education. The final report will further include summary volumes containing individual country reports. The chapter on Canada is being written by Melina Buckley, a Board Member of the Canadian Forum on Civil Justice and Chair of the Canadian Bar Association Legal Aid Committee; Ab Currie, Senior Research Fellow at the Canadian Forum on Civil Justice and Trevor Farrow, Professor of Law at York University and Chair of the Canadian Forum on Civil Justice.

This project is occurring as a revival of the access to justice movement is taking place, driven in part by United Nations Sustainable Development Goal (SDG) 16 to “promote, just, peaceful and inclusive societies”. Within this overall guiding principle, a number of organizations such as the Organisation for Economic Co-operation and Development (OECD), the World Bank, the United Nations and the Pathfinders for Peaceful, Just and Inclusive Societies are working in different ways to close the justice gap. In particular, the Pathfinders are working to inspire justice reform movements that will create a global momentum for justice and substantially enhance justice for all by 2030, in line with the United Nations 2030 Agenda for Sustainable Development.[1].

The Global Access project shares with the sustainable development-oriented access to justice movement the foundational propositions about the importance of the rule of law in ensuring  democratic, egalitarian states and that assuring equal rights is instrumental in addressing the problems of social exclusion, marginalization and social disadvantage. The Global Access to Justice Project will add to the discourse by taking a comparative, empirically-based look at what has occurred and is occurring in access to justice throughout the world.  It aims to undertake a comprehensive analysis of what has been attempted, what has failed and what has worked well within specific contexts to make legal assistance available to people. The results of the research will inform discussions about expanding access to justice. Current plans are that the work will be completed and submitted for publication in the fall of 2020. The report of the Global Access to Justice Project will undoubtedly make an important contribution to what is at present an exciting and promising revival of the access to justice movement. More detail about the project is available on the web site at globalaccesstojustice.com. Questions about the project or offers to assist can be sent by e-mail to globalaccesstojustice@gmail.com.

[1] See further Task Force on Justice, Justice for All – The Report of the Task Force on Justice (New York: Center on International Cooperation, 2019) online: Pathfinders for Peaceful, Just and Inclusive Societies <https://www.hiil.org/wp-content/uploads/2019/06/Justice-for-All-report-1.pdf>.

Since its establishment in 2002 the Legal Clinic of Guelph and Wellington County has recognized the need to better serve people in rural areas of the county. In May 2019 the clinic, which is located in the city of Guelph, began operating a mobile van called WellCoMs. The project is being funded by the Law Foundation of Ontario. The WellCoMs van travels to 12 communities in Wellington County on a regular basis, visiting each one two or three times each month. The communities vary in size from the town of Clifford with about 825 people to Fergus with a population of about 20,700. The van parks in a conspicuous place likely to maximize the number of passers-by and erects a tent attached to the van. The tent has prominent signage indicating the availability of free legal assistance. At the beginning of the day the WellCoMs team announces the presence of the van by sending out a message on the local community Facebook page. As well, the team places posters with information about the van and the schedule of future visits at places where people are likely to notice, such as the local library or coffee shops. Extensive contacts with community agencies were made in the planning stages of the project to determine strategies that offer the best potential reach, visibility and access within respective communities. Representatives of these community organizations and other interests (the mayor, the local MP or MPP) are also invited to visit the van.

During the first five weeks of the mobile WellCoMs van project, the van attracted 173 visitors. Of these visitors, 50 people were not experiencing a legal problem. A larger number, 123 people (71%), identified a problem for which they wanted help. The people presenting problems were asked how they learned about the van. The largest percentage were just passing by (69%), followed by persons who were referred by a community agency (12%), social media (8%), a friend, relative or other contact (5%), community newspaper (4%) and posters (2%). The five most frequently mentioned problems were: family law (31%), landlord-tenant (14%), Ontario Disability Support Program (ODSP) related and government pensions (11%), wills and powers of attorney (9%) and general civil disputes (9%). The number of people visiting the van increased on the second or third visit in 10 out of 12 communities.

In the spirit of “no wrong door, no wrong number”, everybody is provided with some assistance. A number of options for assistance are available. People visiting the van can contact a lawyer or legal worker at the clinic immediately using Skype. Referrals are also made to the legal clinic in Guelph and sometimes to neighbouring clinics. In addition, referrals are made to various community services, to Legal Aid Ontario family law offices and to the Law Society of Ontario lawyer referral service and other sources of assistance. A variety of printed public legal education materials is also available.

These preliminary findings suggest that there is a considerable amount of unmet legal need in rural Wellington County. Further, the mobile van appears to be an effective form of outreach. During the same five-week period in 2018, 21% of intakes at the Guelph clinic were from rural parts of Wellington County. During that period this year the percentage of rural intakes increased to 35%. It should be noted that the van cannot operate in the inclement weather of late fall and winter. As such, the van will run until October 31. Some way to transition from the van to another form of outreach that people will respond to has to be developed. Also, the potential of the van as a gateway to various forms of legal service has to be refined and further developed. Serving rural and isolated communities is a common problem facing legal services. The WellCoMs mobile van project being carried out by the Legal Clinic of Guelph and Wellington County is making a good start at learning how to do this.

The family law system affects individuals and their families in diverse ways. One common thread is that family law disputes tend to be emotionally charged and affect people in the long-term.[1] Due to the nature of family law problems and the fact that they often involve important relationships, this particular legal problem type benefits significantly from expedient, mutually beneficial resolution.

The importance of family law issues notwithstanding, there is an increasing number of self-represented litigants (SRLs) appearing in family law courts in Canada and elsewhere. A 2012 report by the Canadian Forum on Civil Justice (CFCJ) suggests that the number of unrepresented litigants for family matters in Canada could be as high as 50%.[2] With recent funding cuts to Legal Aid Ontario, the number of self-represented litigants in family court is likely to rise further.[3]

Even before these cuts, the number of self-represented family law litigants appearing in Canadian courts had been rising.[4] The main reason for this rise in SRLs is an inability to pay for representation. However, there also various personal reasons why people may represent themselves. Some people have a “do it yourself” attitude, while others may feel that having a lawyer will not lead to a significantly better outcome than they could secure for themselves.[5] One way that justice services and programs have responded to this increase in SRLs is by developing legal information tailored for individuals without lawyers. This process can lead to even more people representing themselves because they see that there are accessible services available.[6]

Self-Representation and Family Law

Given the large number of SRLs in family court, an important question is how do they fare? Jennifer Leitch, a research fellow at the Canadian Forum on Civil Justice, explored this question by conducting interviews at a self-help legal centre in Downtown Toronto.[7] Her research found that SRLs often struggle when they come up against trained and experienced lawyers. Some unrepresented litigants felt that the lawyers were uncooperative, and in response they felt intimidated and powerless.[8] The knowledge imbalance between counsel and SRLs caused anxiety among litigants who felt that they would be manipulated by lawyers who have greater legal expertise than them.[9]

Research has demonstrated that not only do SRLs have difficulty working with opposing counsel, they also struggle to effectively resolve disputes in family court. The Harvard Access to Justice Lab conducted a randomized control study on the effectiveness of legal representation for people seeking a divorce.[10] They randomly divided participants into two groups, those who received assistance from pro bono lawyers and those who were referred to self-help resources. The results are startling. Participants with representation in family court were 87% more likely to successfully divorce than those who were only offered self-help resources. Three years after the study began, 45.9% of people who received representation had terminated their marriage, compared with only 8.9% of people who used the self-help assistance.[11]

Similarly, a small research project conducted in 2012 by a student at the University of Windsor Faculty of Law identified numerous challenges to filling out court forms to file for a divorce as an SRL.[12] The project was completed as part of a larger research initiative by the National Self-Represented Litigants Project on the experience of SRLs in Canada. The goal of the sub-project was to assess the length of time required to complete family law forms to initiate a divorce or separation. The forms were completed for three provinces— Alberta, British Columbia, and Ontario. It should be noted that the research assistant tasked with this assignment was, at the time, a law school student who had recently completed a course on Family Law and Civil Procedure. Overall, she experienced difficulty in understanding the language of the forms, in choosing the correct form, and in identifying the next steps in the process.

Unsatisfactory resolution of family law problems can have serious effects on individuals lives. They can lead to health problems, stress, emotional issues, and relationship strain among families.[13] For example, victims of domestic violence who cannot successfully divorce their partners may continue to experience serious impacts to their health and emotional well-being.[14]  Children can also be deeply affected by parental conflict and it can lead them to act out, have higher levels of aggression, and have problems resolving disputes.[15] The serious psychological effects of unresolved family law problems demonstrates the need for effective and timely dispute resolution.

How Do We Resolve This Issue?

Many lawyers advocate for more self-help resources to allow SRLs to better navigate the family court system. However, the research from Harvard demonstrates that self-help resources are not always sufficient for the timely resolution of family law disputes.[16] At the same time, representation is not an option for everyone, as legal aid is only available to a fraction of low-income earners who experience legal problems. Additionally, even among those who qualify, legal aid is only applicable to a narrow set of family law problems. We need to find other solutions that can bridge the existing gap in legal services for family disputes. What are the options to resolve this issue? Three possible actions offer promise as ways of increasing access to justice for SRLs in the family law system: the use of non-lawyers to provide lower-cost family law services, expanded use of alternative dispute resolution, and the modernization of the courts.

Some advocates for family justice reform support the integration of non-lawyers to provide assistance with family law matters. Since non-lawyers, such as paralegals, can deliver services at lower rates than lawyers, the hope is that people would utilize those services instead of representing themselves. In the recent Law Society of Ontario election, paralegals pushed for an expanded scope of practice, so that they can perform more tasks done by family lawyers.[17] This would allow paralegals to provide legal services at a lower cost than traditional family lawyers, creating a more accessible option for people who cannot afford to pay lawyers rates.

Broader adoption of rules that allow non-lawyers to represent a party in family court may not be as far away as one might imagine. Non-lawyers are already allowed to appear as representatives in Ontario family court.[18] Furthermore, British Columbia allows designated paralegals, who are supervised by a lawyer, to appear at family law mediations. Even if they are not used to provide representation, non-lawyers can help assist litigants in other ways. Other forms of legal support, such as directing SRLs to the correct court forms, guiding them through the legal system, and providing general advice can be helpful.

As relates to the second possible reform –expanded use of alternative dispute resolution in family law—a 2017 report by the Canadian Research Institute for Law and the Family (CRILF) highlights the benefits of four methods of dispute resolution to resolve high- and low-conflict family law problems. The study, which included a survey of family lawyers practicing in Ontario, Nova Scotia, Alberta and British Columbia, compared mediation, arbitration, collaborative settlement processes and litigation based on a range of criterion including cost, length of time to resolve problems, and client satisfaction.[19] Although litigation is commonly used to resolve family law problems, most lawyers agreed that, in some circumstances, one or more of the other three processes could offer more cost-effective, timely, mutually acceptable ways to resolve family law problems.[20] In fact, the survey found that except in high-conflict situations, such as violence or abuse, many lawyers did not feel that litigation was the ideal form of dispute resolution.[21]

Manitoba presents a worthwhile case study for this approach to family law reform. The Family Law Modernization Act directs a significant portion of family law cases out of the court system and toward “resolution officers” who, in cases of a separation or divorce, help couples come to an agreement in a less adversarial manner.[22] Only cases involving actual or threatened violence will be streamlined into the court system. A major benefit of this approach is the reduced financial strain on participants who can ideally avoid long, drawn-out litigation. Another important benefit is that it achieves a more conciliatory process. The winner/loser dynamic of litigation can harm ongoing relationships between family members who likely need to sustain long-term communications with one another.[23]

A third possible action is to modernize court processes to increase accessibility. Technology could prove to be a helpful and inexpensive way to address some aspects of the dispute resolution process for SRLs. A new project led by University of Ottawa professor Amy Salyzyn, that will explore how technology can be used to assist the public with court forms,[24] promises to provide much-needed evidence-based research to help inform the ways that technology can facilitate access to justice through the formal justice system.  The project will provide data that could help inform a re-design of court forms to make them more user-friendly and help create paperwork that is more accessible to self-represented litigants. While people can often understand the words on court forms, they may struggle to understand what they are supposed to do with the form and how to fill it out. Being able to fill out court forms online, along with informational guides and videos in multiple languages could help SRLs to better complete their own forms.[25]

A View to the Future

In response to concerns about the effectiveness of the family justice system, some provincial governments are in the process of reform. Manitoba recently passed legislation creating major changes in how the province resolves family law disputes.[26] Similarly, Ontario and Quebec announced over the summer that they would explore possible changes to family law.[27] However, it remains to be seen how these reforms impact the family justice system and whether they create changes that help support unrepresented litigants. Research clearly demonstrates that the current system is not meeting the needs of SRLs. Until changes are made, SRLs will continue to experience problems navigating the family court system.

 

[1] Government of Manitoba, Modernizing Our Family Law System: A Report from Manitoba’s Family Law Reform Committee (Government of Manitoba, 2018) at 2, online: Manitoba <https://www.gov.mb.ca/justice/pubs/familylawmodern.pdf > [Modernizing Our Family Law System].

[2] CFCJ, “The Cost of Justice: Weighing the Costs of Fair & Effective Resolution to Legal Problems” at 4, online: CFCJ <https://cfcj-fcjc.org/sites/default/files/docs/2012/CURA_background_doc.pdf>; Rachel Birnbaum, Nicholas Bala & Lorne Bertrand, “The Rise of Self-Representation in Canada’s Family Courts: The Complex Picture Revealed in Surveys of Judges, Lawyers and Litigants” (2013) 91:1 Can Bar Rev 67 at 71, online: <https://cbr.cba.org/index.php/cbr/article/view/4288>.

[3] Michael Spratt, “Ford’s Cuts to Legal Aid Will End Up Costing Ontario Way More Than They Save” CBC News (11 June 2019), online: <https://www.cbc.ca/news/opinion/legal-aid-1.5169428>.

[4] Birnbaum, Bala & Bertrand, supra note 2 at 71.

[5] Ibid.

[6] Ibid.

[7] Jennifer A Leitch, “Lawyers and Self-Represented Litigants: An Ethical Change of Role?” (2018) 95:3 Can Bar Rev 669 at 679, online: <https://cbr.cba.org/index.php/cbr/article/view/4429>.

[8] Ibid at 680.

[9] Ibid at 683.

[10] A2J Lab, “Divorce”, online: a2j lab <https://a2jlab.org/current-projects/smaller-studies/divorce/>; Ellen Degnan et al, “Trapped in Marriage” (2018), online: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3277900>.

[11] Degnan et al, supra note 10 at 5.

[12] Julie Macfarlane, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants (National Self-Represented Litigants Project, 2013) at 56-58, online: NSRLP <https://representingyourselfcanada.com/wp-content/uploads/2016/09/srlreportfinal.pdf>.

[13] Trevor CW Farrow et al, Everyday Legal Problems and the Cost of Justice in Canada: Overview Report (Toronto: Canadian Forum for Civil Justice, 2011), online: CFCJ <https://www.cfcj-fcjc.org/sites/default/files/Everyday%20Legal%20Problems%20and%20the%20Cost%20of%20Justice%20in%20Canada%20-%20Overview%20Report.pdf>.

[14] See for example, Jennifer S Rosenberg & Denise A Grab, Supporting Survivors: The Economic Benefits of Providing Civil Legal Assistance to Survivors of Domestic Violence (Institute for Policy Integrity, 2015), online: Institute for Policy Integrity <https://policyintegrity.org/documents/SupportingSurvivors.pdf>.

[15] John-Paul Boyd, “It’s Not Just Them: The Social and Economic Consequences of Family Conflict” Slaw (22 May 2015), online: <https://static1.squarespace.com/static/5b6db734b1059890c89e8172/t/5ba543cfe4966b0fdd51ff40/1537557456947/It’s+Not+Just+Them%3A+The+Social+and+Economic+Consequences+of+Family+Conflict+–+Slaw.pdf>.

[16] Three years after the studies randomization, 45.9% of the group with representation had achieved a termination of marriage, while only 8.9% of the group with self-help or low bono resources were able to achieve the termination of their marriage. Degnan et al, supra note 10 at 5.

[17] Anita Balakrishnan, “Paralegals push for family law reform in election” Law Times (18 March 2019), online: <https://www.lawtimesnews.com/resources/professional-regulation/paralegals-push-for-family-law-reform-in-election/263470>.

[18] Lisa Trabucco, “Lawyers’ Monopoly? Think Again: The Reality of Non-Lawyer Legal Service Provision in Canada” (2018) 96:3 Can Bar Rev 460 at 462, online: <https://cbr.cba.org/index.php/cbr/article/view/4480>.

[19] Joanne J Paetsch, Lorne D Bertrand & John-Paul E Boyd, An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods (Toronto: Canadian Forum on Civil Justice, 2017) a 1, online: CFCJ <https://www.cfcj-fcjc.org/sites/default/files//docs/Cost-Implication-of-Family-Law-Disputes.pdf>.

[20] Ibid at 56.

[21] Ibid at 54.

[22] Anthony Davis, “Manitoba working on family law reforms” Canadian Lawyer Magazine (7 May 2019), online: <https://www.canadianlawyermag.com/practice-areas/family/manitoba-working-on-family-law-reforms/276115>; Modernizing Our Family Law System, supra note 1.

[23] Modernizing Our Family Law System, supra note 1

[24] University of Ottawa, “Amy Salyzyn awarded grant for project studying public understanding of complex legal documents” (21 June 2019), online: UOttawa <https://techlaw.uottawa.ca/news/amy-salyzyn-awarded-grant-project-studying-public-understanding-complex-legal-documents>.

[25] Heather Douglas, “Court Forms: Should Most Forms Be Eliminated?” Slaw (7 August 2019), online: <http://www.slaw.ca/2019/08/07/court-forms-should-most-forms-be-eliminated/>.

[26] Davis, supra note 22.

[27] Mark Cardwell, “Quebec Gears Up for Family Law Reform” Canadian Lawyer (13 May 2019), online: <https://news.ontario.ca/mag/en/2019/07/review-of-family-and-civil-legislation-regulations-and-processes.html>; “Review of Family and Civil Legislation, Regulations, and Processes” (9 July 2019), online: Ontario <https://news.ontario.ca/mag/en/2019/07/review-of-family-and-civil-legislation-regulations-and-processes.html>.